This one is close.
I definitely agree with everyone on the panel that plaintiffs' claims are meritless. If you're an attorney with the government -- here, with the California Attorney General's Office -- you clearly don't have a First Amendment right to represent whatever clients you want on the side. That's just wrong. The AG's Office can reasonably ask you to clear outside stuff in advance. I'm on board for that. Totally.
I'm only uncertain as to whether I'd reverse the award of attorney's fees to the defendant. On the one hand, I am fairly wary of awarding attorney's fees to defendants in civil rights cases, and the law properly reflects that position. Moreover, Judge Graber, who writes the majority opinion, has a good argument that plaintiffs' claims, while wrong, might not be totally absurd and/or obviously frivolous.
On the other hand, Judge Clifton, who dissents, rightly points out that we give district court's deference on this front, and argues fairly credibly that no reasonable attorney would really think that they have a constitutional right to work with freelance clients on the side. Which would make a fee award to the defendant justified.
Plus, wholly apart from the law, I'm sure everyone understands the realpolitik here. The plaintiff here remains a current attorney with the A.G.'s office, who's filed a meritless suit against her own office (and makes a variety of other legal moves, including getting using a request for "reasonable accommodations" to get a transfer). I'm sure it doesn't escape notice as to what a fee award in favor of the A.G.'s office will practically accomplish. Will plaintiff pay it? Probably not. What will really happen? The parties will agree to waive the award in return for the plaintiff resigning. Since that's a good move for her at that point and, I'm sure, worth it for the A.G.'s office in order to get rid of someone I'm confident they don't want but are otherwise practically compelled to retain.
Do I think this plays a conscious part in the legal analysis here? No. A subconscious part? Probably not either. But when reading the case, I admit I felt a tug. Ultimately, I'd probably side with Judge Graber and reverse the fee award. But is there a part of me that says that it would be socially beneficial -- and, moreover, beneficial for everyone involved (plaintiffs and defendants alike) -- if Paula Gibson were persuaded to leave the A.G.'s office, either through a fee award or otherwise? Yes. There is. I have a keen sense that no one's winning from the status quo.
