KATIE PALMS: My
name is Katie Palms, and on behalf of the Board
of Student Advisors and Dean Kagan, I would
like to welcome you all to the final round of the
Ames Moot Court Competition. The case before
the court tonight, Hubbard versus Andrews, was
written by Meryl Kessler and Julie Barton. The case presents two
questions, the first regarding the extent to which the
First Amendment protects extracurricular, online
speech by students at a public university,
and the second regarding the circumstances under which
the 14th Amendment requires a public university
to give an employee a name-clearing hearing. Petitioners Sophie
Hubbard, Jeanine Lopez, and Hector Betancourt,
undergraduate and graduate students at Ames
University, are represented by the Honorable Iftikhar
Muhammad Chaudhry Team, Ishan Bhabha, Jonathan
Cooper, Alexandra Davies, Christina Krause, Logan
Steiner, and David Zimmer. Ishan Bhabha and David Zimmer
will be making oral arguments on behalf of the team. Respondent Rebecca
Andrews, the Dean for Science and Engineering
at Ames University, is represented by the Harper Lee
team, Kristin Bateman, Douglas Brayley, Eric Nguyen, Elyse
Schneiderman, Philip Tedesco, and John Benjamin Ward. Eric Nguyen and
John Benjamin Ward will be making oral arguments
on behalf of the team. The Honorable Stephen
Breyer, Associate Justice of the United States
Supreme Court, will preside as Chief Justice
of this final round argument. Joining him will be the
Honorable Marsha Siegel Berzon of the United
States District Court for the Ninth Circuit,
and the Honorable Frank Hull of the United
States District Court for the Eleventh Circuit. We ask that you please hold
your applause until all oralists have finished speaking. Please also remember
that the petitioner will make rebuttal arguments
after the respondent has spoken. Please also note that no
photography of any kind is permitted at any time
while the justices are in the courtroom. And please remain seated while
the oralists are speaking and turn off all cell phones if
you have not done so already. Best of luck to both teams, and
everybody enjoy the argument. Thank you. BAILIFF: All rise. The Honorable, the Chief Justice
and the Associate Justices of the Supreme Court
of the United States. Oyez, oyez, oyez, all
persons having business before the Honorable, the
United States Supreme Court are admonished to draw near
and give their attention, for the Court is now sitting. God save the United States
and this Honorable Court. STEPHEN BREYER: Right. Here we have the case of
Hubbard against Andrews. And lawyers are ready? Go right ahead. ISHAN BHABHA: Mr. Chief Justice,
and may it please the Court, my name is Ishan Bhabha, and I,
along with my co-counsel David Zimmer, represent
the petitioners Sophie Hubbard, Jeanine
Lopez, and Hector Betancourt in this matter. I will argue that Respondent
violated petitioner's First Amendment rights
when she removed the online roundtable
containing Petitioner's paper from the internet. And Mr. Zimmer will argue
that Respondent violated petitioner Betancourt's
14th Amendment rights by placing false
and stigmatizing charges in his personnel file
without affording him a name-clearing hearing. We'd like to reserve three
minutes for rebuttal. Your Honors, this case
arises in a university, a context this
Court has noted is the quintessential
marketplace of ideas and occupying a special
constitutional niche. For two reasons,
Respondent's restriction of Petitioner's speech
was unconstitutional. First, the university created
a designated public forum, and as Petitioner's speech fell
inside the forum's designation, it should be judged on the
strict scrutiny standard. Under this standard,
Respondent's restriction cannot stand. Second, if this Court determines
that the online roundtable was not a designated public forum,
but rather a nonpublic forum, then the standard from
Tinker should apply, and again, Respondent's
restriction cannot stand under Tinker. MARSHA SIEGEL BERZON: Is there
any case in which a court has taken a website, basically, or a
server as being a forum at all? ISHAN BHABHA: Your Honor, a
number of courts have noted that a forum-- and this
Court, indeed, as well-- that a forum not necessarily
has to be a physical thing. I mean, for-- MARSHA SIEGEL BERZON:
Well, I understand that. But this is, it seems to
me, somewhat different. And I'm wondering
whether the forum analysis is even useful at all. Because a server is
essentially fungible. I mean, there could
be a different server. They could have
gone off and taken-- put the same website
somewhere else. It's somewhat irrelevant, isn't
it, whether it's on a server-- on the university server, as
opposed to somewhere else. ISHAN BHABHA:
Well, Your Honor, I would say the Fifth
Circuit in Putnam Pit has recognized that a
bulletin board, for example, can have many of the
aspects of a public forum. So that is one court that
has analyzed internet sites in a forum analysis. But it's not clear
that Respondent would have allowed Petitioner to
post that paper anywhere else. Indeed, the concerns
that Respondent cites regarding the
paper don't have to do with the
imprimatur, or the idea that the university
would somehow be badly associated
with the speech, but rather have to
do with the content. MARSHA SIEGEL BERZON:
Exactly, which is why I'm wondering
whether the forum idea has anything to do with this. ISHAN BHABHA: I think it does,
Your Honor, because the forum analysis allows this
Court-- and allows the lower courts-- to set the
balancing standard between the university's
regulation of speech on its own property
and the individual's right to free expression. And without the
forum analysis, which even in an internet context
where so much communication continues to this
day, a forum analysis allows that balancing
test to take place. And in fact, this Court
noted in ACLU v. Reno the extent to which
the internet is the quintessential, democratic
forum for the free exchange of ideas, making
the university's restriction, especially
on the internet, so antithetical to that notion. STEPHEN BREYER:
Well, what's a forum? ISHAN BHABHA: Excuse
me, Your Honor? STEPHEN BREYER: What's a forum? ISHAN BHABHA: The
forum in this case-- STEPHEN BREYER: No, no, but I
mean, I don't know what it is. I mean, I understand
what a park is. A park is a place where,
historically, people have had a right to demonstrate. You got me that far,
and probably that's true of a lot of streets too. But I don't know how
you get me any farther. I mean, is a classroom a forum? Is this a forum? I mean, what's a forum? ISHAN BHABHA: Your
Honor, I think a forum is a place where
petitioners, or individuals, in general, seek
access to speak. And so a forum-- STEPHEN BREYER: Well,
that's true in every class. So is every class a forum? I mean, they used to. Maybe now a lot of the
students don't want to speak, but it used to be-- there
were a certain number, anyway, who always want to try to speak. And the others don't like
them that much, and so, but in any case,
is that a forum? ISHAN BHABHA: I think,
Your Honor, a classroom could be considered a
nonpublic forum, yes. STEPHEN BREYER: So a
classroom is a forum? ISHAN BHABHA: Yes. STEPHEN BREYER: OK. Is my dining room table a forum? I have these children
always trying to speak. ISHAN BHABHA: Well,
Your Honor, if you represent the government, then
that could be a forum, but-- STEPHEN BREYER: So is the
GSA cafeteria a forum? ISHAN BHABHA: It is a
forum, Your Honor, yes. STEPHEN BREYER: Well then
everything is a forum, I guess. So where is that getting
us talking about a forum? ISHAN BHABHA: I think a
forum analysis is important, Your Honor, because it allows
for the balancing test. And in order to determine
all the different-- STEPHEN BREYER:
What do you mean, it allows for a balancing test? ISHAN BHABHA: Well, it allows
this court and lower courts to analyze the government's
interest in restricting speech from the individual's right
to free expression and a way of putting all the different
tests for free speech, be it strict scrutiny,
Tinker, Hazelwood-- STEPHEN BREYER: Now, suppose
the government just says, look, I have some welfare
payments I'm giving to people. Is that a forum? ISHAN BHABHA: Not
unless, Your Honor-- STEPHEN BREYER: OK. So what they say
is, by the way, I think I'm only going to
give it to Democrats. Is there a free speech
problem with that? Is there a First
Amendment problem there? ISHAN BHABHA: Your Honor, I
think it would depend whether-- STEPHEN BREYER: No, no, I
don't like Democrats because-- or I don't like Republicans--
so I'm just going to give them to people in the other party. And the reason is, I
wish they'd shut up with talking about their party
when I have the good party. OK? So now, do you feel any problem,
there is a First Amendment interest in there, isn't there? ISHAN BHABHA: Your Honor, I
think it would depend whether it was the government speaking--
and this would be a Rust v. Sullivan situation, so-- STEPHEN BREYER: No,
what the government does is the government
says, I'm going to give welfare benefits to
my friends, the Democrats, because I don't like
that other party. And next time they'll
learn not to talk so much. ISHAN BHABHA: Your Honor-- STEPHEN BREYER: There's no
problem with the government. That's what they did. OK now, if you have a
problem with my saying that there's a First
Amendment problem with that. ISHAN BHABHA: I think when
the government is conditioning a benefit on the expression of
a particular political belief, then yes, there would
be an issue there. STEPHEN BREYER: Fine. And so what I'm
showing you is you don't need this word
"forum" in order to recognize First
Amendment problems and begin to look to
see if somebody is hurt and there's a legitimate
government interest. Now we're back at Judge
Berzon's question. FRANK HULL: And shouldn't
we be focusing on the nature of the speech to begin with? What is the nature
of the speech here? Is it political speech? What type of speech is it? ISHAN BHABHA: This is
scientific speech, Your Honor. FRANK HULL: It's
scientific speech. It's speech. Isn't it
criminal-facilitating speech? ISHAN BHABHA: Your
Honor, Petitioner's-- FRANK HULL: Tells
you how to hack into the system and
facilitates criminal activity? Is that the nature
of the speech? ISHAN BHABHA: No, Your Honor. With respect, the
petitioner's speech is the heart of the kind
of academic dialogue that takes place in universities
and is so crucial to protect. FRANK HULL: Is it not
true from the record that the paper details exactly
how to hack into the system? ISHAN BHABHA: Your
Honor, the paper does contain
information regarding the problem, which is
the underlying security vulnerabilities. FRANK HULL: And the
university has no interest in protecting that issue? ISHAN BHABHA: Your
Honor, the university has an interest in protecting
the network security, and the best way to
do that is to fix those vulnerabilities, not to
suppress Petitioner's speech. In this case, what's
endangering the IT security of-- FRANK HULL: So it's
just academic speech. That's all it is. ISHAN BHABHA: It's
an academic speech on scientific topics, which
is something that even Justice Jackson recognized
in Jeanette as being crucial within the
First Amendment. Simply because it's
not political speech doesn't mean that it should
lose First Amendment protection, especially in a
university setting, where the free exchange of
ideas is so crucial. FRANK HULL: And how do we look
at the internet usage rules? Do we give them any
deference at all? Do they have right to have rules
about access to the internet here? Or the website? ISHAN BHABHA:
Certainly, Your Honor. The internet guidelines are-- FRANK HULL: So they do have
some power to have rules? You will concede that
with regard to access? ISHAN BHABHA: Oh,
absolutely, Your Honor. The university can have the
guidelines that it does, and they form the-- when
the university creates the designated forum, the
reasonable guidelines, which the petitioner believes
are reasonable, form the boundaries
of that designation. MARSHA SIEGEL BERZON:
Do you understand what your clients did to
have violated the guidelines? ISHAN BHABHA: No, Your Honor. We do not believe that
the speech of our client did violate the guidelines. It was speech that
sought and presented to the university a means
of protecting itself from closing the
underlying security vulnerabilities that the
university had left open since 2005. This speech was very much
to do with protecting the rights of individuals
at the university. MARSHA SIEGEL BERZON:
But is that why it didn't violate the guidelines? Or is it because the
guidelines really weren't about the
content of the documents? The guidelines were about the
use of the physical servers, but it wasn't really-- did the guidelines say
anything about content? ISHAN BHABHA: Well,
the guidelines refer to speech that doesn't
protect the integrity of the system or violate-- FRANK HULL: Yes, but aren't
the guidelines content neutral? Viewpoint neutral? ISHAN BHABHA: Yes, Your Honor. We've never contested-- FRANK HULL: So the university,
it's academic speech. They have some
right to regulate. You concede both points. Is that correct? ISHAN BHABHA: That's
right, Your Honor, yes. FRANK HULL: And the
guidelines are reasonable. So are we left with there's
just a factual issue about whether your speech
violates the guidelines? Why is that not the
issue here, really, as opposed to First
Amendment issues? ISHAN BHABHA: Your Honor-- FRANK HULL: It's just a factual
issue of whether your speech violates the guidelines. ISHAN BHABHA: Your Honor, the
question of whether or not the speech violates the
guidelines is, for a start, a question the District Court
never addressed, and therefore, if this Court determines
it's dispositive, it should remand to the
District Court for analysis. MARSHA SIEGEL BERZON:
And why's that? We're in Summary
Judgment, right? ISHAN BHABHA: Excuse
me, Your Honor? MARSHA SIEGEL BERZON: Aren't
we in Summary Judgment here? ISHAN BHABHA: Yes, that's
correct, Your Honor. MARSHA SIEGEL
BERZON: So aren't we reviewing de novo,
on the record? ISHAN BHABHA: That's correct,
Your Honor, issues of law. But this is an issue of fact
as to whether the content of Petitioner's speech violated
the nature of the guidelines. And that's something that
the District Court never addressed in her opinion. But in addition, the question
of whether or not the speech violated the guidelines would
only determine whether or not it falls within the
forum's designation and should be protected
under strict scrutiny, or whether it falls outside
the forum's designation. And then Petitioner argues
that outside of a forum, speech should be treated as if
it's in a nonpublic forum. And there the standard
from Tinker should apply. The baseline standard this
Court has applied in academic-- STEPHEN BREYER:
Forgetting the cases for a minute, as I read their
brief, what they're saying is this, that your
clients had a document. And if we put that
on the internet, that document would teach
students, and anyone else who looked at it, how
to break into our computer system, which would compromise
people's social security numbers, which would
enable them to get all kinds of private
information about our students that the students might
not want others to have. And the result will be very
harmful to the people who use this. So we said, don't put it on. OK? We're not going to let them put
that very harmful information on our computer. Now, what is it in
the First Amendment that says they can't do that? And why? ISHAN BHABHA: Your Honor, what
it is in the First Amendment is the strict scrutiny standard
that this court should apply in this case. Under the strict
scrutiny standard, the restriction is
only allowed if it's necessary to fulfill a
compelling governmental interest and is
narrowly tailored. And for the same reason,
when this court-- in Brandenburg for example-- dealt with what was allegedly
dangerous speech, but said, this does not meet the
appropriate standard, Petitioner's speech
is the same way. In addition, though
Respondent does-- FRANK HULL: Wasn't Brandenburg
criminal sanctions? The government was
imposing criminal sanctions in Brandenburg. Wasn't that the issue there? ISHAN BHABHA: That's true-- FRANK HULL: --which is
totally unlike this case, where they're just
trying to say, you cannot put the paper on the
website that shows how to hack into the system. ISHAN BHABHA: That's
true, Your Honor, though courts have applied-- FRANK HULL: So there's no
criminal sanction here. ISHAN BHABHA: There is no
criminal sanction, yes. FRANK HULL: In
fact, they say, you can post it as long
as you take out the privileged information about
how to get into our system. Is that not the case? ISHAN BHABHA: The
latter thing Your Honor said is not the case. The university removed
the entirety of the paper, and in fact, the entirety
of the roundtable and never consulted Petitioners. FRANK HULL: But didn't
they say, and if you redact the infringing part,
you may put it back up? ISHAN BHABHA: No, Your Honor. They asked to pull down the
entire paper of Petitioner's, never indicating that
there was, in fact, valuable parts of the paper. And indeed, Justice Breyer,
Chief Justice Breyer, the parade of horribles that
Respondent cites allegedly from Petitioner's paper
has no basis in the record beyond six words
in the complaint. And in fact, in the six days
after the Petitioner's paper was posted, before
it was pulled down, there was no record
whatsoever of any harm coming to the university. Three professors
who read the paper in their independent
capacity as judges of the competition
obviously judged it meritorious enough to win,
and the only advertised prize was posting on the website. FRANK HULL: Isn't the
fact of the matter is Brandenburg doesn't
apply because that was criminal
sanctions, Hazelwood doesn't apply because
it's a high school, and there is, in
effect, basically no law that is in point here? Would you concede that? ISHAN BHABHA: No, Your Honor. We believe that-- FRANK HULL: What's
in point then? What case is most like your
case from the Supreme Court, not lower courts? ISHAN BHABHA: Well, Your
Honor, the standard from Tinker has been applied by this Court. FRANK HULL: But you said,
this is not political speech. Tinker spoke at
length emphasizing it was political speech,
a black arm band. ISHAN BHABHA: That's
true, Your Honor. FRANK HULL: So
Tinker doesn't apply. Isn't that correct? ISHAN BHABHA: No, Your Honor. I don't think the Tinker
standard need only be restricted to political speech. Tinker made clear that it
was the personal expression of speech-- FRANK HULL: So what is the
case most like your case? ISHAN BHABHA: Well, from
this Court's jurisprudence, which has not dealt with that
many student speech cases, I think the standard from
Tinker for independent student speech-- FRANK HULL: But isn't
that the whole point? There is no prevailing
precedent here. ISHAN BHABHA: Well, there's
certainly no governing precedence, Your Honor. But there are standards
that this Court can apply that are analogous. And I think-- MARSHA SIEGEL BERZON:
Would this case be any different if it didn't
involve the university's IT system at all, but instead,
for example, was a sanction-- it was on a private
website, but the sanction was expulsion, or some
sanction of the students for publishing this paper? Would that make any
difference, in terms of the actual, underlying
interest, as opposed to fitting into some
forum categorization? ISHAN BHABHA: Well, I think-- MARSHA SIEGEL BERZON: In this
instance, in my hypothetical, you wouldn't apply a
forum analysis, right, because it wouldn't be
university's property. ISHAN BHABHA: It wouldn't
be government property. MARSHA SIEGEL BERZON:
Does that change anything in terms of the underlying
interests that are really at stake here on both sides? ISHAN BHABHA: Your
Honor, it may not, in the sense that if the
university took punitive action against the students for
expressing their First Amendment opinions,
then surely one of the tests from this Court's
jurisprudence would apply. But as this takes
place in a university, though the concerns, I
think, are very analogous, the forum analysis
structure allows university administrators
and students a means of structuring the
expectations for speech and also determining
what sort of regulations which will take place. And I think this is crucial,
especially in a university setting, where the free exchange
of ideas is so important and expectations of what kind
of ideas will be shared-- MARSHA SIEGEL BERZON:
The lower school cases really never explain how they
intersect with the forum cases. They're kind of two
lines of authority that don't seem to be passing
in the night to some degree, and you seem to want to buy
into the school line of cases. And why is that useful to you? ISHAN BHABHA: I
think it's useful, Your Honor, just as a
means of structuring the inquiry as to which
of the multiple tests that could be used for student
speech is appropriate. I think in a classroom
setting, there's no question that the university
or a lower school can exercise greater
discretion over student speech and, potentially, in
a situation where, as this court in
Cornelius noted, the policies and practices
of the university indicate that it's having
a greater degree of control over student speech. There, it would be unreasonable
to say to a university, you should apply the
same standard there as you do in a
situation where you create a forum for pure,
private expression of students. So I think that's why
the forum analysis is important in this case, not
because it's dispositive, but it does allow structuring-- all of these different tests--
and giving the lower courts and giving students some idea of
exactly the freedoms that they will have. MARSHA SIEGEL BERZON:
So if you were to suggest how we should
write our opinion, you think that we
should use the existing structures in some fashion? ISHAN BHABHA: I think it
would be useful, Your Honor-- FRANK HULL: Or should
we say the Supreme Court cases are a muddle and
provide no guidance? [LAUGHTER] ISHAN BHABHA: Well,
muddled may be-- STEPHEN BREYER: That's
quite commonly the case. ISHAN BHABHA: I think muddled
may be harsh, Your Honor, but certainly the cases are-- FRANK HULL: Let me ask
about an allegation in your own Complaint,
going back to the record. You allege and you would concede
that your paper demonstrates ways in which hackers can
take advantage and get into the system to cause
serious disruption to Ames. I will accept Tinker for
purposes of this argument. Why would this not satisfy
even your own Tinker standard, if that's the
most relevant precedent, by your own Complaint? ISHAN BHABHA: I see my
time is about to expire. May I? FRANK HULL: You may answer-- STEPHEN BREYER:
Answer the question. ISHAN BHABHA: Your
Honor, the reason this wouldn't satisfy Tinker,
and this court clarified in Healy that it needs
substantial evidence, or a substantial threat
of material disruption, is that the underlying
harm here is the internet vulnerabilities
the university has left open since 2005. Petitioner's speech was
an academic dialogue aimed at presenting to the
university means of closing those vulnerabilities. FRANK HULL: As we say in court,
you've answered the question. ISHAN BHABHA: Thank
you, Your Honor. STEPHEN BREYER: [INAUDIBLE]. DAVID ZIMMER: Mr. Chief Justice,
and may it please the Court, my name is David Zimmer. And as my co-counsel,
Ishan Bhabha stated, I will argue that
when Respondent placed false and stigmatizing charges
in Betancourt's personnel file that could be accessed
by potential future employers, Respondent deprived Betancourt
of a protected liberty interest, and thus owed
him due process of law. Your Honors, because this Court
has instructed the parties to assume that the charges in
this case are stigmatizing, the sole question before
this Court today regarding Betancourt's liberty interest
is whether Respondent publicly disclosed the charges against
Betancourt under this Court's holding in Bishop v. Wood. MARSHA SIEGEL BERZON:
Were the questions presented drafted by the court? Is that our understanding? DAVID ZIMMER: Well,
Your Honor, the question presented in this case was
the question that Petitioner-- is worded in exactly the same
way as the question Petitioner presented in the appeal,
so presumably-- it's unclear exactly, but
presumably this Court adopted Petitioner's wording. Indeed, therefore,
the sole question before this Court
today is whether or not the charges in this
case were publicly disclosed under this Court's
holding in Bishop v. Wood. And for two primary
reasons, this Court should interpret
public disclosure to include the
placement of charges into a channel that could
lead to their dissemination. First, in Bishop v. Wood, this
Court reasoned, the charges are publicly disclosed
as soon as they leave a public employee
less free than before to pursue new jobs. Because each job application
that Betancourt filed could trigger the release of
false and stigmatizing charges against him by the-- FRANK HULL: By the
way, why is this false? DAVID ZIMMER: Your Honor,
the charges in this case are false, as the District Court
found, because Betancourt could not have been acting in
an insubordinate fashion because he was not acting in
his capacity as an employee of the university when
he refused to remove the paper from the roundtable. Betancourt was acting in his
capacity as a graduate student and as the editor of the
website of the roundtable. STEPHEN BREYER: I
thought Bishop v. Wood-- I might be
misremembering it, but I thought it was a case
which the defendant won. DAVID ZIMMER: In which--
that's true, Your Honor. STEPHEN BREYER: So
how does it help you? DAVID ZIMMER: Well, Your
Honor, the reasoning in Bishop v. Wood,
the charges were made against the plaintiff
orally and in private by his supervisor. And this court
reasoned in Bishop that in a situation in
which charges were not publicly disclosed and in which
the individual was, therefore, as free as before to pursue
new jobs, that in that case, the individual could not make
out a liberty deprivation. FRANK HULL: But the
facts of Bishop, it was only an
oral communication. There was nothing in writing. DAVID ZIMMER: That's
true, Your Honor. FRANK HULL: So Bishop
tells us nothing. DAVID ZIMMER: Well,
Your Honor, it's true that Bishop-- the
specific holding of Bishop sheds very little light on
what public disclosure actually means. But the idea, and what
Petitioner is arguing, is that the reasoning in
Bishop, that the way that Bishop got to its public
disclosure requirement, was as an attempt to weed out
cases in which individuals effectively had not been
in any way prevented from pursuing new jobs. STEPHEN BREYER: So, how
is this supposed to work? A lot of people teach. There are a lot of
probationary teachers. And when you want to promote
a probationary teacher, it's normal for the faculty
to get recommendations from people. And so are you saying that
any negative recommendation, before you can use it, you
have to tell the individual and have a hearing? I mean, if you have to have
a hearing, and the person who says, you know, I thought that
he was a terrible teacher. Indeed, I don't
think he showed up to class until it was at least
15 minutes after the bell rang. And moreover, he was snoring
quite a lot of the time. Now, are you saying if
somebody were to say something like that then
you'd have to have a hearing before the rest
of the faculty could use it, and that the Constitution of the
United States insists on that? DAVID ZIMMER: Not
at all, Your Honor. And there are two-- STEPHEN BREYER:
What are you saying? DAVID ZIMMER: There
are two reasons in which the situation
Your Honor suggests would not require a hearing. Under Paul v. Davis,
the charges must be made in conjunction
with a change in tangible legal status. STEPHEN BREYER: Yes, you
see, we looked into this because we're thinking of
giving this individual tenure. So that's quite a
change in status. OK? DAVID ZIMMER: Well-- STEPHEN BREYER: So now,
I'm back to my question. DAVID ZIMMER: Yes, so the
other issue, Your Honor, is that it's not simply any
negative evaluation that would require a
hearing, but only when charges rise to
the level of stigma, as this Court established-- STEPHEN BREYER: Oh
well, my goodness. Snoring in class? DAVID ZIMMER: Well,
Your Honor, this Court-- STEPHEN BREYER: That's going to
be hard to get a job anywhere. You start snoring in class, it
suggests that you're asleep. [LAUGHTER] DAVID ZIMMER: It does suggest-- I haven't met anyone
who snored while awake. It's true, Your Honor. But the issue is
that even that-- so a negative evaluation along
those lines would not actually rise to the level of stigma-- STEPHEN BREYER:
So in other words, it doesn't make a--
it's not a problem if you say whatever it was. The joke has gone far
enough, but you say here, what was the language here? The language here was? He was in-- what was the word? It was in-- DAVID ZIMMER: The
charges in this case were insubordination, making
inappropriate comments to students-- STEPHEN BREYER: Oh, making
inappropriate comments. Fine. Insubordination, they
meant, I think-- well, I don't know what
they meant about that. I don't know if
that's serious or not. I guess it might
be, might not be. Hard to say. DAVID ZIMMER: Well again,
Your Honor, the issue-- STEPHEN BREYER: I think this-- is that what this
turns on, whether this is better or worse or? DAVID ZIMMER: Well, Your Honor,
the question of whether or not the charges rose to that
level of stigmatizing is not the question
presented before this-- MARSHA SIEGEL BERZON:
It is, though, very hard to think about this case
without thinking about that because, in
fact, you have-- I mean, the stigma would
have to be attached to the increment between
what he actually did and the fact that he
did it in one capacity rather than another,
which doesn't seem very stigmatizing at all. So it makes the case
hard to think about because although I
think you're probably right that the issue
wasn't properly raised, it's not a very
useful way to consider what a really stigmatizing
statement would look like. Like he murdered somebody, you
might think quite differently about that. DAVID ZIMMER: That's
true, Your Honor, but I think that
the key point is that the stigma inquiry and
the public disclosure inquiry are separable, in
the sense that there is a question of how
bad the charges are, how stigmatizing the charges are. MARSHA SIEGEL
BERZON: And you don't think you might take a different
view with a public disclosure question, depending
on how stigmatizing-- if the documents said
he murdered somebody, you might think, well, he
should be able to challenge that at the outset. But if it was a more
incremental thing, you say, well, let's wait until
it actually has some effect. DAVID ZIMMER:
Well, Your Honor, I would actually disagree
with that in the sense that even a slightly
smaller charge, if it rises to the level of stigmatizing,
if it is publicly disclosed, would significantly infringed
on the individual's ability-- STEPHEN BREYER: Boy,
you're back-- oh, sorry. We're back to my question. What is it? What is the answer? I've read a lot of
tenure applications. People are pretty
rough, sometimes, in those applications. They say, you know, his work
is original and interesting. What's interesting
is not original. What's original is
not interesting. That's a famous-- all right,
but people say things like that. And they think it's funny. But the point is that people
can be very, very rude. And my question
is, are you telling me that all these tenure
applications and files which are kept, that the
Constitution of the United States requires that there
be a hearing as to each one? Is that what you're saying? DAVID ZIMMER: Well, no. It's not, Your Honor. STEPHEN BREYER: No? OK? DAVID ZIMMER: In
the sense that-- STEPHEN BREYER: Yes or no. MARSHA SIEGEL BERZON:
But not at Harvard. DAVID ZIMMER: Sorry? MARSHA SIEGEL BERZON:
Not at Harvard because it's a
public university. DAVID ZIMMER: Well, not
at Harvard, obviously. But also, in
addition, Your Honor-- STEPHEN BREYER:
University of Michigan. Do you want to say, yes,
or do you want to say, no? DAVID ZIMMER: No, no. The answer is no, Your Honor. STEPHEN BREYER:
The answer is no. OK. DAVID ZIMMER: And
in that situation, when the charges
are used internally, there's no argument that
a hearing would be needed. The question is if
that university we're going to release those
charges to other employers, that is when the danger arises. FRANK HULL: So that gets us
back to public disclosure. How can you argue there's
public disclosure here when your client hasn't
applied for a job? Nobody's asked for
their recommendation. Nothing has happened yet. It's only in the file. DAVID ZIMMER: Well, you Honor-- FRANK HULL: The
very minimum part-- it's just been
placed in the file. How can that be
public disclosure? DAVID ZIMMER: Well, Your
Honor, public disclosure is not necessarily involve
a third party accessing the charges but is the act of
making those charges available. FRANK HULL: They haven't
been made available. MARSHA SIEGEL BERZON: What's
wrong with the proposal that you wait until
somebody is asked for it and then you have a hearing? DAVID ZIMMER: Well, I
think the issue with-- MARSHA SIEGEL BERZON: --if
you want to disclose it. In other words, I know that
you quarrel in your briefs about the third party. But it really isn't third party. It's if somebody asked for
it and the university is prepared to disclose
it-- has made a decision to disclose it--
then you could have a hearing. What's wrong with that? DAVID ZIMMER: The issue with
that, Your Honor, is that-- well, there are two issues
with that, Your Honor. The first is that the actual
deprivation, the thing that actually impacts the
individual's ability to pursue new jobs is
the placing the charges in the file, because
it's at that moment that the individual is
actually less free than before to pursue new jobs. Because it's at that
moment that they are forced to decide
to either protect their professional reputation
by not applying to jobs or to risk their
professional reputation-- FRANK HULL: How
does it affect me when I don't know it's there? DAVID ZIMMER: Well,
Your Honor, in a way, it's even worse if you
don't know that it's there. Because then you
could apply to jobs not realizing that you're
being put in a situation where each application you
file could trigger the release of these charges. FRANK HULL: So you're
asking for a rule that makes public disclosure the time
of the placement in the file? I just want to understand
what your position is. Is that your position? At the moment it's placed in the
file, it's public disclosure. DAVID ZIMMER: It's
publicly dis-- FRANK HULL: Is that
correct, yes or no? DAVID ZIMMER: It's correct. Yes, Your Honor. It is correct. In a situation where
those files could be accessed by members of
the public, and in this case, the university's
privacy regulations allow other public institutions
to request those files and allow the university
to release those files. And thus when-- MARSHA SIEGEL BERZON:
So you don't think it makes any difference at all-- suppose if the regulation--
here, the regulation is kind of indeterminate. They may or may not release it. And shouldn't that
make a difference as to what the
rule is about when you have to have a hearing if
you have to have a hearing? I mean, it might be different
if the regulation said, and if asked by a
public university, we will release them. But that's not what it says. DAVID ZIMMER: Well, Your
Honor, it doesn't say that. However, it also provides
almost no guidelines as to when the personnel
files will be released. There is an
indeterminate number of-- FRANK HULL: It's
purely discretionary with the file custodian. DAVID ZIMMER: It's
purely discretionary. That's true, Your Honor. FRANK HULL: And they don't
even acknowledge with-- or is required by the general
counsel if they want to go, but the file custodian
is not required to seek general counsel approval. Is that correct? DAVID ZIMMER: That's true. They're not. They're not required-- FRANK HULL: So it's
totally discretionary. It goes back to the
judge's question, then. We don't even know here whether
discretion will ever occur. DAVID ZIMMER: That's
true, Your Honor. However, given the fact that-- FRANK HULL: So why
shouldn't we wait until, actually,
discretion is exercised, and they propose to
release it, but they notify your client first
and have the hearing then? Why would that not adequately
afford due process here? DAVID ZIMMER: The reason
that that would not is that a standard like the
one Your Honor is suggesting would be entirely unenforceable
by individuals like Betancourt. That's exactly what the Fourth
Circuit noted in Sciolino, that Betancourt would
have to apply to jobs knowing that these false and
stigmatizing charges were in his file and
would not necessarily be able to verify when a
request from a potential future employer came in. MARSHA SIEGEL
BERZON: But, I mean, to go back to some
of the questions that Chief Justice
Breyer has been asking, suppose they'd written
nothing in the file, but that when he
applied for a job, they called the person
who put this in the file and they said, what do
you think of this guy? And she says, he's
insubordinate. Well, he's certainly
never going to know that. DAVID ZIMMER: That's
true, Your Honor. But that would be-- I mean-- MARSHA SIEGEL
BERZON: Would he have to have a hearing over that? DAVID ZIMMER: In the case
where that person did actually disseminate those charges
and make those statements, then they would, absolutely,
require a hearing. MARSHA SIEGEL BERZON: So it
doesn't depend on the writing then. DAVID ZIMMER: Sorry? MARSHA SIEGEL BERZON:
It does not depend on the writing in a file. It's just an opinion from
anybody at the university called for a reference. DAVID ZIMMER: Well,
no, Your Honor. The difference-- the distinction
is when charges are actually disseminated, when the
charges are actually distributed to potential
future employers or to any member
of the public, I don't think there's any
debate that at that point that would constitute
public disclosure. The issue is in determining when
something less than that would constitute public disclosure. MARSHA SIEGEL BERZON:
But what difference does it make as to whether
there's public disclosure, whether there's a piece
of paper in the file or there isn't a piece
of paper in their file? I mean, you agree if there's
no piece of paper in the file that any right is
triggered at the point that somebody is going to
disseminate the information. So what difference does
it make there's this piece of paper sitting in the file? DAVID ZIMMER: Well, Your Honor,
to individuals like Betancourt and those who have false and
stigmatizing charges made against them by the state, it
makes an enormous difference. And indeed, one of the purposes
of the due process clause is to make individuals
feel like government is treating them fairly. MARSHA SIEGEL BERZON: But right,
but what I'm trying to say is this, this person who has
this false idea in their head is still walking around with
the false idea in their head. You're not going
to have a hearing about a false idea that's
in somebody's head, right-- DAVID ZIMMER: No, of course not. MARSHA SIEGEL BERZON:
--until it becomes [INAUDIBLE] in some fashion. So why is it
different whether it's a false idea in someone's
head or a false idea on a piece of paper in a file
that's not going anywhere? DAVID ZIMMER:
Well, Your Honor, I think the issue is that it's
entirely unclear whether or not that file is going anywhere. And indeed, there's nothing
that would suggest that as soon as Betancourt
applied to a job that it wouldn't that day
under the university's privacy regulations be released
to that potential-- MARSHA SIEGEL BERZON:
But that's also true of the idea
in somebody's head. DAVID ZIMMER: That's
true, Your Honor. However, we recognize
that we obviously can't provide hearings
every single time somebody has an idea. STEPHEN BREYER: Oh my god. DAVID ZIMMER: But
when the university takes affirmative action,
when the university takes a concrete step that makes
false and stigmatizing charges available to the outside
world, to the public, and, specifically,
to institutions to which this individual
may be applying, in that situation, an
individual's ability, their liberty to pursue
their chosen occupation has been significantly impaired. STEPHEN BREYER: Why? That is, when you
think about this, I can't really find a case that
says there is any such right-- at all. I mean, Woods says
it by implication, and I know there's one
involving a liquor license, or right to drink
liquor or something. But why should there be a right
like this in the Constitution? After all, if somebody goes
around and lies about you, there are laws against
libel and slander. At this very moment, there
are probably 50,000 people applying for 2,000 jobs
in a new administration, and there are people
all over the place saying horrible things
about half of them. And a lot of them could
end up in the newspaper. And there are people every
day in welfare agencies who say very unfortunate things
about some of their clients. There are a lot of
people hurt by bad words. Why of all the people
that might be protected do we decide that people who
want to teach in a university are the ones to have this right? I mean, what is
this right anyway? I don't understand it. So why don't you
explain to me what it is in a world where people
could sue for slander or libel when they're hurt. Why does it even
exist, if it does? DAVID ZIMMER: Well,
first of all, Your Honor, this Court has recognized this
right quite clearly in Bishop, but also-- STEPHEN BREYER: I
would say, all right-- DAVID ZIMMER: I'm sorry, well-- STEPHEN BREYER: You know
what we think of Bishop. I can't really do--
it's hard to get a right from
negative implication, but I'll go back and look
and see what they say. DAVID ZIMMER: But in Owen
v. City of Independence this Court actually
affirmatively recognized a right upholding an
individual's claim under just such a case. The public disclosure
was not an issue. But it was this underlying right
and this underlying liberty. STEPHEN BREYER: Just such,
what do you mean just such? It was a professor? Or what was it? DAVID ZIMMER: No, it was a
police chief, Your Honor. STEPHEN BREYER: A police. DAVID ZIMMER: So
this in no way would be limited to universities. It would involve all
public employees, and it involves all
situations in which public and public employers
basically publish stigma-- put stigmatizing lies
into personnel files that they could then
under their own procedures release to potential
future employers. This Court in Owen
specifically recognized a right to pursue a chosen occupation
in exactly the way Petitioner is suggesting. FRANK HULL: But hadn't
the police chief in Owen been terminated and
the file had been requested and had been turned over? And he had a claim for
$1,983 for damages. Isn't that the facts in Owens? DAVID ZIMMER:
Absolutely, Your Honor. Owen had nothing-- FRANK HULL: And none
of that happened here. Nothing's been released? DAVID ZIMMER: That's
true, Your Honor. Owen did not involve a question
about public disclosure. The sole point was that
Owen did recognize this type of liberty interest claim. And I think that the issue
is that once this claim is recognized, once it's recognized
that one has a right to pursue one's chosen occupation, that
right would be meaningless if the state is
allowed to interfere with the actual act of applying
to jobs by threatening-- MARSHA SIEGEL BERZON:
One interesting thing is that my understanding
of the common law resolution of the same problem
is kind of the opposite. It is that there is a
privilege, isn't there, with regard to these kind of
employment inquiries, largely? DAVID ZIMMER: Your Honor, I
see my time has expired there. STEPHEN BREYER: You can answer. DAVID ZIMMER: The difference
in this case, Your Honor, is that what is
being requested here is not a substantive outcome. It's actually just-- it's the
due process, the right to feel, on these individuals parts, that
they're being treated fairly, that they're given
an opportunity to present their
side of the story and to have the government-- MARSHA SIEGEL BERZON: And that's
my last question, if I may, which is, what kind
of a hearing do you think that there should be? You're very vague about
that in your brief. And obviously, there's myriad
cases about what processes do and that might matter as to
our ultimate resolution here. Are you just saying that
they had an obligation to let him write his own letter
to the file disputing it, or does he have to have
a hearing with a hearing officer and witnesses, or what? DAVID ZIMMER: Your Honor,
under this Court's decision, I think that the
nature of the hearing could be very much discretionary
on the part of the university and would simply have to have
some sort of neutral arbitrator and allow Betancourt
to present-- MARSHA SIEGEL BERZON:
So you wouldn't be satisfied with
simply the right to write a contesting
letter to the file? DAVID ZIMMER: No,
Your Honor, I think that would not be sufficient. But anything-- almost
anything-- beyond that would be. MARSHA SIEGEL BERZON: But
some of the Supreme Court's due process cases seem
to contemplate something like that. DAVID ZIMMER: That's
true, Your Honor, and even that would be
significantly-- well, infinitely more
process, given the zero process that Betancourt
was afforded in this case. But I do think that
the preferable would be an opportunity for
Betancourt to at least contest the underlying facts
and to make some claim to a neutral arbitrator. For all of these
reasons, we would urge this Court to overturn
the Court of Appeals. STEPHEN BREYER: Thank you. DAVID ZIMMER: Thank
you very much. STEPHEN BREYER: Mr. Nguyen. ERIC NGUYEN: Thank
you, Mr. Chief Justice, and may it please the Court. The parties agree that the
paper on the roundtable web page provided a
detailed step-by-step set of instructions-- MARSHA SIEGEL
BERZON: Well, where do the parties agree to that? First of all, you rely a lot
in your brief on the complaint, and as I understand
the complaint is not-- it's not a verified
complaint, is it? ERIC NGUYEN: So the petitioners
concede that in the complaint, and they also conceded that
just now in oral argument, that the paper
contained detailed, step-by-step instructions
on how to hack through-- MARSHA SIEGEL BERZON:
They didn't say that. They said it had some detail. It's very hard without
the actual document to tell what we're
talking about here, but there's a big difference
between the level, whether it's at
a level of detail that people could actually
go ahead and do it, as opposed to descriptive
enough to explain the problem but not really to allow
somebody to follow it. And there's no way to tell from
any of the documents we have which one it is. ERIC NGUYEN: I think it is-- I think there is a
difference between those two types of documents. And the petitioners, again,
say in their complaint and have not challenged at
all throughout this process that the paper does, in fact,
contain detailed instructions on how to-- MARSHA SIEGEL BERZON:
Have they ever used the word instructions? ERIC NGUYEN: It says it
has a detailed explanation. MARSHA SIEGEL BERZON: Right. Do they ever? They never use the
word instructions. You're the one who is using
the word instructions. ERIC NGUYEN: The
petitioners do say that it would enable hackers
to follow the explanation, to hack through Ames State's
network security, shut down-- MARSHA SIEGEL BERZON:
Where do they say that? Not in the complaint,
but in the facts that we're dealing with
on summary judgment? ERIC NGUYEN: The parties
filed a statement, a joint statement
of stipulated fact, that's found on page
27 of the record. MARSHA SIEGEL BERZON: Yes. And where does it say that
this would allow somebody to actually hack in? ERIC NGUYEN: It said that-- it says that they included-- this is three lines
up from the bottom, a detailed explanation of how
hackers could attack the Ames U. system successfully. MARSHA SIEGEL BERZON: Yes. And I don't read
that necessarily. It's an explanation,
but it doesn't mean that somebody
could actually do it by following this. ERIC NGUYEN: Well, they've
said that the explanation would leave the Ames State
system particularly vulnerable to sophisticated
black hat hackers who troll internet websites-- MARSHA SIEGEL BERZON: And
where does it say that? I actually had a lot of
problems with your brief for this reason because I
thought you were overstating the record substantially. Where does it say
what you just said? ERIC NGUYEN: That's in
footnote 2 on page 27. It says that, "the
system continued to be vulnerable to attack
by black hat hackers." It explains what those
black hat hackers try to do. STEPHEN BREYER:
But where does it say that this document
would allow the black hat hackers to do anything? ERIC NGUYEN: The language is,
again, three lines up on page 27, a detailed explanation
of how hackers could attack the system successfully. So the petitioners
evidently thought that by following
their explanation, hackers could attack
the system successfully. And they say that by
hacking through the system, they could shut down
all campus security, they could access confidential,
personal information, and they could cause,
quote, "serious disruption to the university." MARSHA SIEGEL BERZON:
Where is that? That's all in the complaint. ERIC NGUYEN: That isn't-- it is, of course,
in the complaint that the petitioners filed. MARSHA SIEGEL BERZON: Right. And that's not a fact
before us at this point. ERIC NGUYEN: Your Honors,
that is an assumption that the parties have made
based on the complaint, and the petitioners
have not contested, even in the reply brief, that
any of the factual assertions are incorrect. The threshold issue
before the Court-- FRANK HULL: Even if the paper
has an explanation of how to hack in, the
petitioners argue that the focus of
their paper is how to correct those problems to
prevent that from occurring. So you disagree on the focus of
the paper where the intent is to prevent occurrence
or to enable occurrence, isn't that correct? You dispute what the
focus of the paper is. ERIC NGUYEN: We
dispute-- we do not dispute that the
paper did contain valuable information
that identified the problem for the university. FRANK HULL: So at a minimum,
it has dual purposes? ERIC NGUYEN: That's correct. FRANK HULL: All right. And isn't it
necessary to say how to fix it that you must
explain what the problem is? ERIC NGUYEN: I
think that's true. FRANK HULL: And don't
they have a right to criticize the university
for not protecting their private information? They have that right
to criticize, correct? ERIC NGUYEN: They
certainly do, Your Honor. FRANK HULL: And
they have a right to say it should be fixed? ERIC NGUYEN: That's correct. FRANK HULL: And they
have to identify the problem, necessarily, to
say how it should be fixed. Isn't that correct? ERIC NGUYEN: Well, that
is in a general sense-- FRANK HULL: Now, I'm not
getting to First Amendment. I'm just talking
about the facts. ERIC NGUYEN: In a general
sense, that's correct. FRANK HULL: OK. So what's the problem here? Why is it not protected
speech to criticize the state with regard to
what they're doing wrong? ERIC NGUYEN: The
threshold issue, as you indicated in a
question to Mr. Bhabha, is whether the paper as a
whole-- the roundtable page-- complied with the university's
internet usage guidelines. Those are-- MARSHA SIEGEL BERZON:
But why is that? I mean, your interest
in this paper has nothing to do with
whether it's on your website. You would be just
as upset if it was on somebody else's web site. ERIC NGUYEN: I
think that's true. The question before
the Court today is whether the Constitution
forces a university to host information that could
be very threatening to students on campus. MARSHA SIEGEL BERZON:
But that doesn't seem to be a useful inquiry,
because your interest in it has nothing to do with
control of property. The whole forum notion
has to do so, essentially, with, we have some property,
and we get to control it. That's not what
you're upset about. What you're upset about-- it's the content of this
document wherever it was. And not only that,
it's not even directed at people in the university. It's directed at
the world-at-large-- ERIC NGUYEN: We think
it is particularly-- MARSHA SIEGEL BERZON:
--and accessible by the world at large
because it's on the internet. ERIC NGUYEN: That's true. Of course, the
paper does contain an explanation of how to hack
into Ames State's network security. MARSHA SIEGEL BERZON:
And if it was on AOL, you'd be just as upset. ERIC NGUYEN: I
think that's true. FRANK HULL: But you'd
be upset, but you couldn't do anything about it. ERIC NGUYEN: I think-- I think that's right. FRANK HULL: You couldn't
take it off AOL. ERIC NGUYEN: I think we'd
have to meet a higher level of scrutiny to do that. FRANK HULL: --to do that. So here the issue is, could you
take it off your own website? ERIC NGUYEN: I
think that's right. And again, the question
before the Court is whether a web
page that explains, that gives an explanation, of
how hackers could shut down campus security, could
shut down network security, whether that really
complies with university's internet usage guidelines? MARSHA SIEGEL BERZON: No, the
first question before the Court is whether we look at
this internet access through this prism of
the forum doctrine, or whether we look
at it, essentially, as governmental
censorship at large. ERIC NGUYEN: I think
the university created an amount of web space
in which students could post information,
could discuss issues. In that sense, it
created a forum. It then, as this Court said
it could in Rosenberger, created a set of
limited guidelines that the petitioners would
have to comply with or else their speech could be excluded. MARSHA SIEGEL
BERZON: Suppose this was a faculty person publishing
a paper on Marxist economics. Could the university
tell them they have to take that off the website? ERIC NGUYEN: I don't think
under the limited public forum guidelines they could do that. That wouldn't, of
course, threaten the access and integrity
of network resources, as this paper did. MARSHA SIEGEL BERZON: And
if they publish something that might encourage
terrorism in some fashion they couldn't take
that off either? ERIC NGUYEN: They
might be able to if it was going to incite
imminent terrorism under a different standard. MARSHA SIEGEL BERZON:
But then you're applying the
Brandenburg standard. ERIC NGUYEN: That's
a different standard. MARSHA SIEGEL BERZON:
But you're not-- you're trying to avoid
the Brandenburg standard. ERIC NGUYEN: I think in
Brandenburg the Court lay down a blanket principle. In any forum at any time, if a
speaker encourages or incites imminent, violent behavior,
it can be limited. MARSHA SIEGEL
BERZON: But you don't want us to apply Brandenburg? ERIC NGUYEN: No. The Court has
applied, has come up with a number of other tests. For example, in
Rosenberger it said that the government is allowed
to create reasonable forum rules. For example, in this case that-- I think it's important to
recognize the consequences. If a university cannot
tell its students, we're going to provide you with
computers and email accounts and internet access, but you
can't use those resources to distribute hacking
explanations that would allow other people to steal
students' information-- MARSHA SIEGEL BERZON:
But you're therefore making a distinction
for some fortuitous reason between hacking
explanations and-- what if what was on here
was how to sell marijuana? Would that-- that wouldn't
violate the internet rule. So that's OK? ERIC NGUYEN: I think
under the limited public-- if the Court decides under the
limited, public forum rules that would not
violate those rules. MARSHA SIEGEL BERZON:
I don't understand how this violates those rules. ERIC NGUYEN: So
the rules are found on the second page of the
appendix of the red brief. MARSHA SIEGEL BERZON: And
obviously, what they're directed to is actual
actions that compromise the internet system. It's not directed at content,
and it oughtn't to be. ERIC NGUYEN: Well, the
actual text of the rule is that the students,
must protect the access and integrity of computing
and information technology resources and
respect the privacy and personal rights of others. The specific question
before the court is when you post a paper that gives
a detailed explanation of how to shut down campus security
and steal other people's personal information
whether that really complies with the regulation
that you agree to that says, you must respect other
people's privacy rights and you can't violate-- MARSHA SIEGEL BERZON: But
of course, their position is that the problem isn't
what they're saying, it's the state of the system. And that if they
don't expose it, somebody else is going
to find it out anyway and that they're
trying to fix it. ERIC NGUYEN: I think-- I think that's
partially correct, and we're very appreciative
that the students have brought this problem to our attention. The question is
while the university is trying to implement those
security fixes, whether we have to force the university to
leave those instructions-- that explanation-- up. FRANK HULL: Let's switch a
bit to the burden of proof. You're the movant and
you have the burden. ERIC NGUYEN: That's right. FRANK HULL: That's correct. And to show undisputed
facts entitle you to judgment as a matter of law. ERIC NGUYEN: That's right. FRANK HULL: Why in
the world would we decide this case without the
actual paper in the record and not vacate and
remand, as the Supreme Court often does, for
further development of the factual record? Why is that not the
answer to this case? ERIC NGUYEN: Your Honor, I
think if the university were the only one in the
record to have described the paper and the specific
things that the paper does, we might have to remand. Of course, we'd be
comfortable with that. Given the facts that
we know in this case-- FRANK HULL: So you're fine
with vacating and remanding-- ERIC NGUYEN: We
don't think that's-- FRANK HULL: --in this case? ERIC NGUYEN: We would
be OK with that, but we don't think
it's necessary. MARSHA SIEGEL BERZON: Is
there any finding that, or could you make a finding
on the current record that, in fact, somebody could
hack in by reading the paper? ERIC NGUYEN: Again, on
page 27, the petitioner stipulated to the
Court that it would allow hackers to successfully
attack the Ames State network. STEPHEN BREYER: OK. So then is that the solution? The reason they keep
talking about forums is because they think
the university here has told all kinds of groups
that they can put all kinds of things on this computer. And they might
think, you know, you start looking at what's on
that computer, oh my god. So all of a sudden,
out of all those things that are there,
including some that are probably properly
labeled, oh my god, this one they object to. And they didn't go
say, why didn't you just cross these parts out. They didn't see if they
were willing to make it a little harder to
get for the hackers who want to destroy everything. And we don't even know
what it looks like. So why not tell the
District Court judge, here's what you do. First, go get the
paper and read it. Second, go look and see the
other kinds of things that are on this university thing. And then make a judgment about
whether the stuff in this paper is significantly more dangerous
and harmful to privacy or social security numbers
than all this other stuff that you're perfectly
willing to put up with. ERIC NGUYEN: I
think, Your Honor, based on the detailed concession
that the petitioners make in the complaint and our
own review of the paper, we're comfortable that
on remand the District Court would find that
it clearly violates the internet guidelines. Of course, it's
important to remember that the type of danger
that this paper posed-- FRANK HULL: But a
distinction they pose is that we're not
advocating hacking, we're just telling
you how to go do it. And why isn't that a
material distinction? ERIC NGUYEN: I think
it's not because it doesn't change the fact that-- FRANK HULL: But there's
no advocacy here. You agree with that? ERIC NGUYEN: I agree there's
absolutely no advocacy. FRANK HULL: No
advocacy of violence? ERIC NGUYEN: Agreed. FRANK HULL: So it
wouldn't satisfy Tinker. Is that correct? ERIC NGUYEN: It could
satisfy Tinker, Your Honor. The Court in Tinker
and Healy said that when a
university reasonably believes that expressive
activity will result in substantial
harm, the university is allowed to take reasonable
steps to limit that expressive activity. So here the question-- FRANK HULL: Do you remember
the facts of Healy v. James-- and that was the SDS and
the allegedly rioting and so forth, is
that not correct? ERIC NGUYEN: That's right. The problem-- FRANK HULL: But even there, the
Court said, we need development of the factual record. Look at actual intent. Is that not correct? ERIC NGUYEN: That isn't true. The Court remanded
the case and said that, if the university
could provide the District Court with evidence,
any evidence, that it had a reasonable belief that
substantial disruption would occur at some point
in the future, the university would
be able to prevent the students from
meeting on campus, prevent them from even using
bulletin boards around campus. We have a threat of substantial
disruption in this case. FRANK HULL: Do you concede
Hazelwood really doesn't apply? You spent a lot of time-- do you concede that now? ERIC NGUYEN: No, I
think the question of whether Hazelwood applies
to this case is a close one. There are two reasonable
ways of reading the case. FRANK HULL: How would
you write around Healy that says, First
Amendment protections do not apply with less force
on college campuses than the public at large? ERIC NGUYEN: I
think that's right. But you could read Hazelwood-- FRANK HULL: So you can't
reconcile Hazelwood with that, can you? ERIC NGUYEN: Well, I think
you could read Hazelwood to say that it's about
the reasonable right of a university to limit
expressive activity when students hold that speech out
to be approved or endorsed by the university, as
they did in this case. After all, this-- MARSHA SIEGEL BERZON:
But that, again, I was going to ask you about
that, because to me, that's another somewhat red herring. Because again, that
isn't your problem. I mean, whether or not the
university is endorsing it or isn't endorsing it isn't
why it's upsetting you, isn't why you wanted
to close it down. It's because of what's
in it and the fact that you believe it to be
dangerous in some fashion. And again, you'd
be just as upset if it was on a different website
that said clearly on top of it, this is not the university. That's not what's bothering you. ERIC NGUYEN: I think that's
right, Justice Berzon. So if the Court rules
under Hazelwood today would only help us in
this very specific case where the paper is posted
on the university's website. MARSHA SIEGEL BERZON:
But the doctrine ought to have something
to do with the problem. And it does nothing. This question of
attribution is just beside the point in
this case, isn't it? ERIC NGUYEN: I think
there is another problem of what would have happen. Of course, we have no indication
that the petitioners have some intent to post this
paper on some other hacking website or somewhere else. And I think that would pose-- MARSHA SIEGEL BERZON:
But what I'm saying is you've lit on to
this attribution problem because it happens
to be in Hazelwood, but it has nothing to do
with the interests that are at stake in this case,
with why you don't like it, with why they want to
do it, or anything else. ERIC NGUYEN: I
think that's right. Of course, Hazelwood would help
us on these specific facts. But I think, in
general, Healy would allow this Court to
rule for the university if it believes that
the university had a reasonable belief that
substantial disruption would occur. MARSHA SIEGEL BERZON:
Doesn't it matter at all that the disruption,
if it occurred, is ultimately traceable
to the university's own dereliction, i.e.,
that the system is no good? And the fact that they
happen to have pointed out that the system is
no good isn't really what's giving-- what's
creating-- the problem. It's that the system is no good. ERIC NGUYEN: I think it
actually would create a problem. Of course, there are
federal statutes that require the
university to protect student medical information,
protect student credit card information. MARSHA SIEGEL BERZON:
And apparently, they're not doing it. And the fact that somebody
is pointing it out isn't what's
creating the problem. The fact is they're
not doing it. ERIC NGUYEN: Well,
we could imagine it would be an even larger
problem if, at this point, now that the university is
aware of the problem, if it simply allowed this
detailed explanation to be posted online without being
able to tell its students, we're taking care
of the problem-- FRANK HULL: At the end of the
day, what their paper says is the truth, is that not so? ERIC NGUYEN: It's not-- FRANK HULL: There's no challenge
to it not being the truth. ERIC NGUYEN: It is
true that there are-- FRANK HULL: They're speaking
the truth about the university. That's correct? ERIC NGUYEN: It is
true that they're-- FRANK HULL: And they're
not advocating hacking in. Isn't that correct? ERIC NGUYEN: That's right. FRANK HULL: So there's no
advocacy of bad activity. That's correct. ERIC NGUYEN: That's correct. FRANK HULL: So why
can't they speak the truth about the university? ERIC NGUYEN: The problem
is that by including with-- we have no objection to
many parts of the paper that simply describe the problem. FRANK HULL: But the problems
in the security system are the truth. Is that not correct? That part of the
paper is the truth. ERIC NGUYEN: Well, the
IT department right now is verifying whether
those problems-- FRANK HULL: But in this case,
you've never contested it that it's the truth. ERIC NGUYEN: That's
correct, Your Honor. FRANK HULL: So you took down
a truthful paper of a student. Is that correct? ERIC NGUYEN: That's correct. And just as we haven't
contested that, the petitioners
haven't contested-- FRANK HULL: So we can't speak
the truth about the university, even though we don't
advocate anything wrong. Is that your position? ERIC NGUYEN: That
isn't true, Your Honor. FRANK HULL: All right. What is your position? ERIC NGUYEN: What
they say is that when the university created
a limited, public forum with reasonable rules, it is
allowed to say to the students, we're going to give you
access to the internet, but you can't use the
university's own internet access to distribute hacking
instructions that would be dangerous to the students. Your Honors, the parties
agree that public universities should limit speech only-- FRANK HULL: What
evidence do you have in the record that there is
any danger to the university? We have just the paper. There's not any testimony. There's no other
evidence, is there? ERIC NGUYEN: The statement
of joint stipulated fact says that the explanation would
allow hackers to successfully hack through Ames State system. And as the petitioners
concede in their complaint, it would allow hackers to
shut down all campus security. Your Honors, the parties
agree that universities should limit speech only in
very narrow circumstances. But here, where the petitioners
violated limited public forum rules and threatened to
cause substantial disruption, this case presents
those circumstances. STEPHEN BREYER: Thank you. ERIC NGUYEN: Thank
you, Your Honors. STEPHEN BREYER: Thank you. Mr. Ward. JOHN BENJAMIN WARD: Thank you,
Mr. Chief Justice, and may it please the Court. Characterizing the
petitioner as insubordinate is not a serious enough
charge to ever threaten his constitutional liberty. Every circuit to address
the question, in fact, has held that insubordination is
not sufficiently stigmatizing-- MARSHA SIEGEL BERZON: How
is that issue before us? JOHN BENJAMIN WARD: Your Honor,
I believe that issue is fairly included under this Court's rule
14.1(a) The certified question asks whether the petitioner
has a 14th Amendment interest in preventing the
placement of stigmatizing material-- MARSHA SIEGEL BERZON:
Right, which is essentially, as I understand it,
there is a four-part test and the question assumes
the answer to three of them and leaves the fourth
for us to decide. And to start backtracking
now as to the stigma seems to completely
compromise our rules, in terms of questions
presented, and our authority to grant or not grant
certiorari based on the question presented. JOHN BENJAMIN WARD: No, Your
Honor, we're not saying that. The four-part test is a
test that certain circuits have identified. It's certainly not one that
all circuits have applied. This Court has said that not all
stigmatizing information counts as information that
would deprive somebody of his constitutional liberty. Nine circuits have said that
information must be, quote, "sufficiently stigmatizing to
implicate a person's liberty," end quote. FRANK HULL: I thought
in the District Court, you only litigated the fourth
part-- public disclosure-- and did not contest
the stigmatizing issue. Is that not correct? JOHN BENJAMIN WARD: That's
correct, Your Honor. FRANK HULL: All right. So how can you raise it for
the first time on appeal? JOHN BENJAMIN WARD:
Well, Your Honor, I don't think that should preclude
this Court's consideration of the issue today. In the time the petitioner
filed his complaint, as now, this Court's
standards governing how to make out a
liberty interest claim were not in doubt. Your Honors, keep in mind-- MARSHA SIEGEL BERZON:
But isn't there, if you had raised
the issue below, the other side might have
put different information on the record, may
have, for example, put experts on as to whether or
not this was stigmatizing. JOHN BENJAMIN WARD:
Exactly, Your Honor. And I think it
should have done so. In fact the-- MARSHA SIEGEL BERZON: But you
didn't raise the question. Why would they have done so? JOHN BENJAMIN WARD:
Well, Your Honor, until the District
Court wrote its opinion granting summary judgment, there
wasn't a for four-part test to apply. The District Court just decided
to apply the Sciolino test. But that isn't a test that-- MARSHA SIEGEL BERZON: Who
moved for summary judgment? JOHN BENJAMIN WARD:
We did, Your Honor. MARSHA SIEGEL BERZON: All right. And what was your basis
for summary judgment? JOHN BENJAMIN WARD: Our initial
basis for summary judgment was the public disclosure
prong, Your Honor. FRANK HULL: Not initial. Sole basis. JOHN BENJAMIN WARD:
That's right, Your Honor. FRANK HULL: All right. So that's the sole basis
in the District Court. And you cannot raise a
new issue for appeal. Isn't that well established? JOHN BENJAMIN WARD: I don't
think so, Your Honor-- FRANK HULL: --that the
District Court has never had an opportunity to rule upon. Isn't that clear under the law? JOHN BENJAMIN WARD: I
don't think so, Your Honor. Under this Court's rule
14.1(a) and also under this Court's rule 15.2, waiver
is discretionary, Your Honor. FRANK HULL: Let me tell
you, we have enough to decide about what
we have to decide. We don't decide what we
don't have to decide. JOHN BENJAMIN WARD: I
understand, Your Honor. And keep in mind, this is-- FRANK HULL: As we
often say, you may want to move on to your next point. JOHN BENJAMIN WARD: Your
Honors, in any event, the petitioner should
not prevail today for a second reason and that
is that he is simply not entitled to a hearing
at this early time. Even if his liberty is on
the line-- if it's at stake-- what the 14th Amendment
requires is a meaningful chance to clear your name. And the petitioner
would have that chance, so long as he gets a hearing at
the point of public disclosure, when his file has-- STEPHEN BREYER: How
will he find out? JOHN BENJAMIN WARD:
I'm sorry, Your Honor? STEPHEN BREYER: I
mean, how will he know? JOHN BENJAMIN
WARD: Your Honor, I don't think this Court should
be worried about enforceability. In the first-- STEPHEN BREYER: No, no,
but I'm worried about him. He doesn't know. I mean, how does he know
that the newspaper is going to publish this tomorrow? And moreover, we now agree that
this information in here says, this man is the bottom. He is the worst. He is beyond belief. We have never seen anyone
in our entire lives as horrible a teacher as him. OK? So we're operating
on an assumption that it is something like that. Given that
assumption, he doesn't want that to appear in the
minds of other employers until he has a chance
to talk about it. Hence my question. If, in fact, the
university is going to show it to other employers,
how does he know when to act? JOHN BENJAMIN WARD: Well,
Your Honor, due process requires both notice and
an opportunity to respond-- STEPHEN BREYER: Ah,
so now you say, what? Now, you're saying that the
Due Process Clause requires them to give him notice
prior to any effort to show an outside person. Is that what you're saying? JOHN BENJAMIN WARD:
Yes, Your Honor. Now-- STEPHEN BREYER: So I mean,
you might accept that. He says, I thought
this was a good time because this is before he showed
it to every outside person. And you're saying
I'm right about that. It's just that we should
wait until it's closer. JOHN BENJAMIN WARD: Well,
you're right, Your Honor. Right, Your Honor, exactly. I think-- STEPHEN BREYER: So that's
what this argument is about. The argument is
between your saying, we agree, we should
show it to you before we show it to
any outside person, and you agree that
we should do that. You want it immediately, and
we want little bit of time until it's imminent. Is that the argument? JOHN BENJAMIN WARD:
Well, Your Honor, we propose two separate rules. Now, I'm confident
that if the petitioner gets a hearing at initial
release of his file to a single,
prospective employer-- FRANK HULL: Your brief is
vague on that-- initial release of the file. Is that before its release
or after its release? JOHN BENJAMIN WARD: It's just
after release, Your Honor. FRANK HULL: All right. [INTERPOSING VOICES] JOHN BENJAMIN WARD: That's
the standard that the first-- STEPHEN BREYER:
First you release, then all the damage is done. MARSHA SIEGEL BERZON:
So in other words, after the damage is done,
and after it's all over-- I mean, again, the
degree of stigma here somewhat
colors the question. But let's suppose what was in
there was he murdered his wife and he, you know,
drowned his children. And that gets
released at some point to a prospective employer, and
then the next thing you know, it's in the
newspaper, and so on. Then you're going
to have the hearing? JOHN BENJAMIN WARD:
Well, Your Honor, it depends on what
this Court believes its conception of
liberty interest is and has been over
the past 50 or 60 years. And Your Honor, I think that
the Court's definition-- or conception-- of liberty
is in the ability of a person to pursue his profession. Now, I don't think when a
single, prospective employer learns of information
in the petitioner's file that his ability to
pursue a profession is going to be deprived. MARSHA SIEGEL BERZON:
You know, the rumor mills are pretty good, I mean,
among university employers, for example. If something gets
out to one person, you can bet it's going
to get further than that. And besides, it doesn't matter. Somebody already knows this. Maybe that's the one job
he wants and now you're going to start-- you're going to
take three months to deal with it while he's
meanwhile being denied the job? JOHN BENJAMIN WARD:
Well, Your Honor, I don't deny that there are
certain circumstances, probably narrow circumstances,
as the hypothetical you posit suggests, in
which losing one job would be a deprivation
of liberty. MARSHA SIEGEL BERZON:
What's wrong with-- I asked him this,
and you both seem to be avoiding the
obvious solution, which is to do it at the point at
which you're about to release the information to somebody. Why is it? Why not? JOHN BENJAMIN
WARD: Your Honor, I think that's an excellent
alternative rule. And a species of that
rule is the one we propose as a second rule in our brief. MARSHA SIEGEL BERZON:
But you don't like it. Your brief just--
you say it briefly, then you say, oh, but it's
not really what we want. JOHN BENJAMIN WARD:
Your Honor, we're happy with either
of those rules. I think that it's
perfectly reasonable that this Court could find
that at some point before Ames State releases the
petitioner's file, it has to grant him
notice and a hearing. In that case, the
contents of the-- MARSHA SIEGEL BERZON: Notice
before they release it? JOHN BENJAMIN WARD:
That's right, before they release the file, Your Honor. STEPHEN BREYER: Do they
intend to release the file at some point to somebody? JOHN BENJAMIN WARD:
In the present case? STEPHEN BREYER:
Your client, yes. JOHN BENJAMIN WARD: It
depends, Your Honor. It depends on whether the
petitioner's file is ever requested. And indeed, the petitioner-- STEPHEN BREYER: Well,
imagine it's requested. Will they release it? JOHN BENJAMIN WARD: They
will release it only after-- if this Court
adopts that second, proposed rule-- they
will only release it after the petitioner-- STEPHEN BREYER: OK,
but you're saying that their custom is that
if somebody asks for it, they release it. Is that the practice
in this university? JOHN BENJAMIN WARD: Well,
it's not clear from the record whether that is the practice. But I think-- STEPHEN BREYER: Maybe we
have to-- what do you think? JOHN BENJAMIN WARD: I don't-- I don't think it's-- I don't think it's relevant
here, Your Honor, because-- STEPHEN BREYER: Well,
it might be relevant. I mean, if the practice
is that they do release it when somebody asks
for it, and you agree that there
should be a hearing before somebody asks for
it, then I might say, well, why not now? Memories are fresh. People are bound to ask for it. I mean, it's most
unlikely they won't. So if that's the
custom, let's do it. Get it over with. JOHN BENJAMIN WARD:
I'm sorry, Your Honor. Again, the record
isn't clear on that. STEPHEN BREYER: I know. So then maybe they're
never going to release it. Maybe the custom here is
they take this record, they share it among themselves,
and they bury it in a vault. JOHN BENJAMIN
WARD: That's right. STEPHEN BREYER: It's in
the Nevada salt mines. It is there with
the atomic weapons. And there we are-- nobody
is ever going to get to it-- ever-- in which case, maybe
there is no need for a hearing. And we don't know
which is which. So we have, now, two
things we better find out. JOHN BENJAMIN WARD:
Well, Your Honor, I think even if it is
the university's custom to release a file
upon request, I think Your Honor's
question perfectly points out the principal discord
identified as being extremely important in Matthews. In Matthews, what
this Court said is that crafting procedural
safeguards is a difficult task, and it doesn't always
yield perfect answers. Instead, what the
Court is to do-- and what the Court in
Matthews said that it does-- is craft rules that
accommodate competing concerns, that balance the
interest of individuals and additional protection
against the burdens that those additional
protections-- FRANK HULL: Speaking
of those burdens, why can't your client
simply adopt a rule, we won't release it, and
that would remove all burden? Why wouldn't that
solve the matter? JOHN BENJAMIN WARD: I think
the problem, Your Honor, is that in cases where
employees are wanting to apply to prospective
employers who do request files, then they would face a
competitive disadvantage in doing so. But Your Honors, there's a
reason that the First, Second-- FRANK HULL: So here
you're just saying, we want to delay when
we do it, not that we don't want to do it at all. Is that your position? JOHN BENJAMIN WARD:
Your Honor, absolutely. If the petitioner's liberty
is on the line here, then there is no dispute
between the parties about whether he gets a hearing. The question is when
it should happen. And the reason that's
relevant, Your Honor, is because of Matthews. Because under the
petitioner's rule, numerous, additional
hearings would result than under our rule,
even a before-release type rule. Your Honor, the petitioner's
rule, in particular, would impose extraordinary
burdens on not just Ames State, and not just public
universities, but on all government
employers across the country. MARSHA SIEGEL BERZON: Well,
but you have a very odd rule, which is that you will
release it to public entities, not to private entities,
which certainly suggests that your interest in releasing
it is not a very strong one. I mean, if you're dealing
with university systems, why should it matter whether
it's Harvard or University of Michigan that asks for it? JOHN BENJAMIN WARD: Your
Honor, I'm not sure. I think probably partly
that rule is in place if public agencies want
to get the petitioner's file for some reason. But I do think that-- MARSHA SIEGEL BERZON:
But it certainly suggests that from your point
of view, there's not a very strong reason. The reason you
gave, for example, can't be the reason,
because Harvard is going to be just as
interested in getting it as the University of Michigan. He's going to be just as
prejudiced by your not releasing it, and yet you say
you're not going to release it to Harvard and you are going
to release it to-- maybe-- to the University of Michigan. So this rule must be
about something else. JOHN BENJAMIN WARD: Well,
Your Honor, even if-- I take your point. And let's just assume,
let's read that regulation as generously as we can to
the petitioner's position. I think even in that
case, there is a reason that the First, Second, Third,
Fourth and Seventh Circuits have each rejected the
petitioner's rule in turn. The rule would impose
numerous additional hearings, would require numerous
additional hearings for government employees
across the country. It would grant hundreds of
thousands of at-will government employees a brand
new constitutional-- STEPHEN BREYER: Why? Why would it? Because all the-- as
my colleague says-- all that the university or
the employing agency would have to do is
tell the people who give references and information,
our private file is private. You're giving it to us. You're not giving
it to other people. Now, why can't they say that? And if the other person
wants to find something out, he can find it out for himself. That way, we keep the
information private. We only use it for the purposes
for which it is intended, namely this person at the
school, and nobody's hurt. JOHN BENJAMIN WARD: Your Honor-- STEPHEN BREYER: Why is that--
why is that a big problem? JOHN BENJAMIN WARD: Well,
Your Honor, the first point I raised, I think,
is a relevant one, which is that employees
in those circumstances might face a competitive
disadvantage when applying for jobs. But the second-- MARSHA SIEGEL BERZON:
But only for public jobs, not for private jobs. JOHN BENJAMIN WARD:
That's right, Your Honor. The second point-- MARSHA SIEGEL BERZON:
It's not right. It doesn't make any sense. JOHN BENJAMIN WARD: Right. Well, Your Honor-- [LAUGHTER] Your honor, the second point
is that even if that is a rule that Ames State should adopt--
and I think that's a great suggestion and a
rule that Ames State should take under advisement-- that still doesn't mean that
the Constitution requires it. It still doesn't mean it should
become a constitutional right. Your Honor, this Court has
long expressed a concern, for example, in
Connick and in Garcetti about constitutionalizing
the employee grievance. MARSHA SIEGEL BERZON: But
ultimately, as the Chief Justice pointed out in
the earlier argument, nobody is really
contesting the notion-- you're not-- that at some
point along this continuum, you do have to give notice
and a hearing, right? JOHN BENJAMIN WARD: That's
true if the petitioner's file is ever requested. MARSHA SIEGEL BERZON:
Well, that's right. But that, I mean, there
are all kinds of problems with that right, like
my hypothetical about, what if somebody is walking
around the information in their head and not
on a piece of paper. But you don't seem
bothered by that. You're just trying
to delay the-- you're not questioning
the basic structure. You're just trying to delay the
time at which the hearing has to be given. JOHN BENJAMIN WARD: Right. Right, Your Honor, not
until it's necessary. What the petitioner's
rule would do is require subsidization of-- in many cases--
unnecessary hearings. There will be premature
hearings, and in many cases, they will be unnecessary. And Your Honors, the
petitioner's rule imposes-- FRANK HULL: How is that going to
be an adequate remedy when it's 10 years later, as the
Chief Justice mentioned, and memories fade? Nobody can remember
what occurred. JOHN BENJAMIN WARD:
Well, Your Honor, if-- FRANK HULL: Why is that
a meaningless remedy at a hearing at that point? JOHN BENJAMIN WARD:
Well, Your Honor, if Dean Andrews is not around
Ames State at that point then the university won't have
witnesses to support its case. And the petitioner's hearing-- FRANK HULL: No, but the
memo will still be there. JOHN BENJAMIN
WARD: That's right. But the memo, uncontested--
the petitioner will have the
opportunity at that point to contest the memo in his file. And-- MARSHA SIEGEL BERZON: What if
you just had a rule that said, if we put something negative
in your file, we will tell you, and you could put something-- you can put a contest in
like credit agencies do? Why would that be any
skin off your back? University's back? JOHN BENJAMIN WARD:
Your Honor, that sounds like a reasonable rule. That isn't, of course, what
the petitioners demanded. On page 7 of their
Joint Appendix, they demand a full-blown,
name-clearing hearing, complete with production-- MARSHA SIEGEL BERZON:
But why wouldn't you be better off defending a
reasonable rule like that one, rather than an unreasonable
rule like the one you have? JOHN BENJAMIN
WARD: Well, I think that's a rule that the
university could take under advisement, Your Honor. Again, there is a
difference, though, between having a good rule
and whether the Constitution requires that rule. STEPHEN BREYER:
What is the rule? What is it? I'm still uncertain. As far as I could
tell from the briefs, there's a case called Owen, in
which a police officer was-- or chief-- was, in fact, fired. And there was some
other information. And there's a footnote,
perhaps written by a law clerk, in the case, I don't know,
and in that footnote refers to a case called Roth,
which is a well-known case, in this faculty, particularly. And Roth involved, I thought
it was a probationary teacher. JOHN BENJAMIN WARD: That's
exactly right, Your Honor. So when you-- STEPHEN BREYER:
Now, what is this-- what is this right,
then, in those cases? I actually am quite
uncertain as to its scope and what the heart of it is, and
why it's there, and what is it. JOHN BENJAMIN WARD: Well,
the liberty interest, generally speaking, is in the
right to pursue a profession. Now, more specifically-- STEPHEN BREYER: The right
to pursue a profession, so you can't tell somebody,
you, for no reason at all, are not going to be a
Mississippi River pilot. All right. I got that one. This seems pretty far removed. JOHN BENJAMIN WARD:
Right, Your Honor. I think the Court has
never precisely defined the boundaries of what counts
as a liberty interest or what doesn't. But it has given some-- STEPHEN BREYER: But what
do you think about that? JOHN BENJAMIN WARD: Well, it's
given some clear guideposts. What I definitely think is that
the petitioner's conception of Roth is, with all
respect to the petitioner, wrong on the facts
of Roth itself. What Roth said is
that being made less attractive to
a future employer, though it might
diminish job prospects, isn't enough to even
implicate a liberty interest, let alone deprive
a person of it. Now, the Court has given
certain guideposts for-- STEPHEN BREYER: What about Owen? JOHN BENJAMIN WARD:
Your Honor, in Owen-- STEPHEN BREYER: In
the footnote, what is that to do with anything? JOHN BENJAMIN WARD: Your
Honor, when the petitioner cites Owen in his opening
brief, he misquotes a parenthetical including Roth. Your Honor, I think that's at
page 26 of his opening brief, but I'm not positive. Your Honor, the
important point is that this court has laid
down very specific cases in which liberty is deprived. For example, if
an aspiring lawyer is denied entry
to the bar, he has a liberty interest at stake. If an ex-government employee is
foreclosed from all federal job opportunities, he has the
liberty interest at stake. There isn't a liberty
interest at stake here. And even if there
is, the petitioner doesn't need a hearing at
this early, early date. Thank you. STEPHEN BREYER: Thank you. You have three minutes. ISHAN BHABHA: Mr. Chief Justice,
and may it please the Court, we'd like to respond
to two points. First, Respondent's
characterization of Tinker and Healy
mischaracterizes those cases and would eviscerate the
standard those cases stand for, because in both cases,
the educational administrators stated that they reasonably
believe there would be a material and substantial
disruption, and in both cases, this Court, imposing
First Amendment, required rejected
that subjective belief of the university and
required, instead, a court, in an objective sense,
to determine the truth, or lack of truth, of that assertion. MARSHA SIEGEL BERZON: But how
can we do that in this case without the document? ISHAN BHABHA: Your Honor,
that's precisely why the grant of Summary
Judgment is inappropriate, as regards to the guidelines
as Your Honors asked pre-- MARSHA SIEGEL BERZON:
The District judge had the document, didn't he? But we don't have it. Did the District judge
have the document? ISHAN BHABHA: It's
indicated from the record that the District judge probably
did, though it's not sure. And she may have based it on
the complaint in the abstract, as well. MARSHA SIEGEL BERZON:
But she couldn't base it on the Complaint, could she? ISHAN BHABHA: It would
have been a broad reading of the Complaint,
I agree with you. MARSHA SIEGEL BERZON:
But the Complaint isn't what we have
before us at this time. We're on Summary Judgment. What we have is the
facts that were actually stipulated to the-- isn't the complaint
irrelevant at this point? ISHAN BHABHA: We would
agree, Your Honor. And certainly, the
characterization of the Complaint in
Respondent's brief. MARSHA SIEGEL BERZON: Well,
that's just irrelevant. The characterization or anything
else, it's not the facts. The facts are the facts. ISHAN BHABHA: That's
correct, Your Honor. And the District Court,
on remand, this case should be remanded,
because the standard the District Court applied,
the standard from Hazelwood is inapposite in this case and
doesn't present nearly the kind of speech protection required
in universities under cases like Tinker and Healy and
Papish, applying, of course, the Tinker standard in
the university itself. STEPHEN BREYER: No, what
the District Court judge says, as they pointed out,
that the plaintiff summarized the results of the
research, including a detailed explanation
of how hackers could attack the system successfully. All right. Now, did you tell
the District judge, that's not actually right? It doesn't give detailed
explanations, at least, nothing practical. It doesn't really enable
people to break in. Did you ever say that? No. ISHAN BHABHA: It's unclear,
but probably not, your-- STEPHEN BREYER: No. FRANK HULL: No. Because you stipulated
that it did. We don't have a Complaint. We have a stipulated
set of facts. Is that not correct? ISHAN BHABHA: That's
correct, Your Honor. FRANK HULL: And the
stipulated set of facts are that you gave a detailed
explanation that a hacker could use to successfully hack in. Is that not correct? That's the stipulation. ISHAN BHABHA: That's
correct, Your Honor. FRANK HULL: So why
doesn't that present a substantial likelihood
of harm to the university? ISHAN BHABHA: Your Honor-- FRANK HULL: --and
more particularly to the students whose private
information the hacker wants? ISHAN BHABHA: Your Honor,
the threat to the university was, before Petitioner's
paper, and remains the underlying security
vulnerabilities. And Petitioner's presentation to
the university of the solutions is not the cause of the
substantial and material threat. STEPHEN BREYER: No, the cause
of the substantial problem is what they say
is there happened to be a few people that, even
if they could have broken in, don't know how. And so luckily for
all concerned who are interested in breaking
in, your client's paper explains just how to do it. So therefore, they're much
more likely to break in. That's the natural inference. ISHAN BHABHA: Your Honor,
my time has expired. STEPHEN BREYER: Well, go ahead. You can answer the question
if it was a question, which it was meant to be. ISHAN BHABHA: I'll
presume a question mark on the end, Your Honor. In essence here, the
threat to the university, which it had failed to fix,
predated Petitioner's paper. And Petitioner's paper, which
was a crucial contribution to the marketplace of
ideas, allowing university to fix that problem, should
not have been suppressed. FRANK HULL: Let me
ask you this question. I've been in the Supreme
Court a couple times. I've figured out how
to bypass security, and I've just posted my paper
on the Supreme Court's website. Can Justice Breyer take it down? ISHAN BHABHA: No, Your Honor. Chief Justice Breyer should
talk to the US Marshals and tell them to close the
security vulnerabilities. FRANK HULL: So he couldn't take
it down off his own website-- STEPHEN BREYER:
No, because I don't know how to work it very well. ISHAN BHABHA: Your
Honors, in this case, the university violated-- excuse me. FRANK HULL: I could do that. I could post it up there,
and he couldn't take it down? ISHAN BHABHA: On Chief
Justice Breyer's personal? FRANK HULL: No, on the
Supreme Court website. The judiciary,
federal judiciary. We have a website. Everybody can post stuff on it. ISHAN BHABHA: Your
Honor, it's unclear, of course, whether that would
be a designated public forum. If it was a nonpublic forum, a
different standard would apply. FRANK HULL: Thank you. ISHAN BHABHA: Thank
you very much. STEPHEN BREYER:
Thank you very much. Thank you all. [APPLAUSE] BAILIFF: All rise. STEPHEN BREYER: Well,
I mean, we thought it was pretty tough to make
this decision, I'll tell you. It was-- I mean, after
all, first of all, this is the nightmare
case of all time. It's sort of Creature from
the Black Lagoon, part 7. I mean, and why I-- I mean, Brady, when
he was the substitute, then became the greatest
quarterback of all time. And I have no such
prospect in the offing. So there we are. But it's very hard, and you
all did a very good job. And people who don't understand
what a nightmare this case is, which we now do,
perhaps don't realize what a good job you did. And you did. And we had a very hard
time saying who was better. But I'll put you out of
your uncertainty on this. On the brief, we
chose the respondents. We thought they had a
slightly better brief. On the oral argument, we
chose Mr. Zimmer, which was on the petitioner's side. And the best overall, I
mean, this is just absolute-- I mean, it could be either
side, I promise you, because they were really
excellent, all four. And I know we have
to choose somebody. So we chose the petitioner. And there we are. [APPLAUSE] OK. I'd like you also to give
a hand to the respondents, because they did
a very good job, and it could well
have been them. [APPLAUSE] That's good. And my colleagues may-- FRANK HULL: Well, I certainly
concur with the Justice. I do have a couple of comments. First, modern day
oral arguments really are conversations
with the court. Lawyers do not stand
up and give speeches. And each of you did a
very good job of having a dialogue with the Court. Good eye contact, you
answered the questions to the best you could, if you
could understand the question. You did a great
job in that regard. Judges up here are
just the referees. The most important persons
in the justice system are the advocates. And I want to
congratulate each of you for not only choosing to be
a lawyer, but to spending all the time that you have done
to enhance your advocacy skills through this competition. It's a tremendous
amount of time. And I congratulate
you on doing that. I'm absolutely convinced
each of the advocates here will one day be a very
important advocate for someone in our system of justice
and will make a difference through your advocacy
skills that you have enhanced through this process. So I congratulate each of you. STEPHEN BREYER: Judge Berzon. MARSHA SIEGEL
BERZON: I would like to second what Judge Hull said. In general, I thought
that all of you were extremely well
prepared, that you were responsive as
best you could be, as Judge Hull suggested. Sometimes we may have been
a little obtuse or obscure. And you were able to deal
with out-of-the-box questions without showing
discomfort or dismay. In style, you were
exceptionally good. All of you were-- did not have redundant
ways of answering. You spoke in clear sentences. You were not discomforted by
being asked many questions. And in general, I thought
the oral work was terrific. In terms of the briefs
and the arguments, you obviously had to make
certain strategic decisions. And some of them dug you
into a few little holes. I'm sure you had
reasons for making them, and I'd be interested in
hearing them afterwards. The case, as our Chief
Justice suggested, was something of a black
lagoon, and you did the best with a very hard situation. So thank you very much. STEPHEN BREYER:
And thank you all. [APPLAUSE]
