please the court the supreme court has long held that the constitution does not stop at the walls of a prison and when this case was previously appealed and brought before this court i extended that maxim to the walls of  a civil commitment facility like the one that mr pass resided in this appeal involves challenges to two policies brought forth by the florida civil commitment center the st of which being and november of two thousand and ten the facility she seek damages or just declaratory and injunctive relief in the complaint that counsel filed were you the lawyer who was appointed by the district court no that was a different attorney we took the case after it came back down from the claims for damages against several of the individual defendants and it's related to which policies if you remember i believe he claimed all of the counts that there is a claim for damages but the primary really of saw in the lawsuit is the after the two thousand and six policy which limited the type of paper that was used in the type the number of times you could go in and print the publication are any of those challenges moot because of the two thousand and ten policy which was more restrictive and outright banned so there is one policy that is moot and that's the two thousand and nine policy that related to duck soup so initially and two thousand and nine they enacted a policy that said that mr pass could still publish duck soup but he cannot print it out so in other words residents either had to go online which they could do at the time to access that publication or he could save it on the shared computers and residents could use their own means to access it during that time when they were on the computer subsequent to that policy in two thousand and ten november two thousand and ten mr bud's changed the policy again and said no no dexie if at all i was the outright ban right and said that policy mooted the two thousand and nine policy which impose printing restrictions on duck soup throughout the and so were as far as you're concerned there's nothing on the two thousand and nine policy for us to review in this appeal correct and when when this court initially sent the case back down  effect that says that he can only print twenty pages of any newsletter and the only individuals that are subject that are not subject to that requirement are the pro social clubs that have unlimited printing within the facility and that's the subject he still is and many people do not leave those facilities and dr krop sesa money our expert he said in the three hundred or so that he is evaluated very few ever actually make it to the point where they complete the treatment program and leave and go back into society and mr pressure is not one of them can you give him a couple of more minutes back on his time please thank you ok who and so as a an initial procedural matter before i get into the turner standard this case is being brought before the court on a order granting summary judgment many cases that that we've looked at and that the parties cite in their briefs are following a bench trial or some other proceeding where there has been a fact finder who's made a determination as the genuineness of the justifications asserted by the facility administrators this is not one of those cases this is a case where the parties has submitted evidence on summary judgment and no trial whether a bench trial or dre trial has been held so the record evidence in this case paints two very different pictures of how this newsletter affected the facility the facility administrators and the as being very inflammatory causing quote rising tensions within the facility and otherwise causing a lot of problems and they saw the need to correct it on the other hand they entered the evidence introduced by mr pass is that this cause no disruption and that's laid out by both the affidavits that he produced of the residents of the facility and also the testimony of dr krop who says that he has been evaluating people in this facility since before it opened really and he has problems that have been complaints that have been voiced throughout this facility's entire run that's complaints about staff turnover it's complaints against kind of authoritarian treatment that they're subjected to and complaints against  the inability to get out in the inability to graduate from these programs i think that's your strongest argument personally with regard to the two thousand and ten ban but weren't there affidavits from some of the staff at the center that were uncontroverted for example the testimony i think of one of the nurses about one of the disturbances that her curd when there was an allegation that she was not doing the right thing with regards to residents male correct and that is the one factual incident that they pointed to where they can show that there was any kind of bad conduct as a result of duck soup and that affidavit while it is troubling she never said that the residents behaved violently toward  her she never said that even that the complaints of the residents were burning were prompted by duck soup and not the original gentleman who had the complaint that his mail had been tampered with that duck soup had reported on furthermore there are there are cases that say an isolated security incident such as the example of a facility opening everyone's mail because of an anthrax scare that happened three years ago is not necessarily enough to bridge a logical connection between a legitimate interest in security  and the facility and the restriction on speech itself more over what's telling in this case is that incident occurred in june of two thousand and ten the ban on duck soup did not occur until four months later  november of two thousand and ten what's more telling is that the date that mister bud's got served to the lawsuit for mr pesh is original challenge the ducks it printing restrictions was in september of two thousand and ten less than six weeks before after before the duck soup publication was banned so there the record is replete with evidence that this this whole justification that he's asserting is not really motivated by these security concerns or rd treatment concerns but is really trying to get back at passy or punish him for his critical views of the facility staff and administration aren't don't those issues to use a phrase from the last case don't those issues sort of combine at some point right because his ability to speak and be critical of what's going inside can to a degree right disrupt the legitimate functioning of the institution for example maybe an example that's not this case ok i'm not suggesting to mr peshitta this but if you had a newsletter which was making unsubstantiated and really really bad allegations about the staff inside that could seriously cause a problem right like an inmate passes away and the allegation is that the inmate was euthanized or somebody is injured in the allegation is that one of the staff members used excessive force as opposed to trying to calm the inmate down and get him or her to go back to his room those sorts of things can certainly lead to a problem can they not if they're fal right and how are you supposed to figure that out ex ante well and the facility has different ways of dealing with false allegations outside of you know banning a newsletter if this were a case where m of disciplinary reports and said that he was printing false stories and they had been proven false this would be a different case even though the administrators make a lot of claims that he portrayed the staff and false light there's no specific allegations of stories pesky has printed that they say are untrue when they point out these excerpts were mr peshitta is writing in kind of inflammatory way is that even trickier happy that i think let's say let's say that a newsletter is publishing actually stories that are true but those stories in the way they're presented are causing the inmates to riot and attack staff members doesn't i think that's i think that's a little bit of an even trickier situation how do you respond to that and  it depends on every case is going to be case specific and that's the necessity of a trial in these situations is you can't just use a formalistic logical thing that says well this story seems really inflammatory so the prisoners may riot as as the  circuit said when they apply the pressure standard there has to be some evidence connecting the stories themselves to the behavior that they're afraid that the people will engage in so there would have to be some kind of evidence that would bridge the story itself to a real threat of there being a riot now that now the case law is very clear actual riot doesn't have to take place but it's not enough for the facility administrator to on their own say in my professional opinion this is going to cause a riot you can't just use a formalistic logical conclusion like that and that's the same type of logic that says we can allow these residents to view r rated films or pornography because that's going to cause them to regress it may make a certain amount of water cooler sense but if it's not backed up by data and or any other kind of evidence then that's not enough to bridge the the st prong of the turner tests it's interesting because even in the turner test i think there is that the case law is clear that we offer additional discretion to prison officials that we wouldn't offer and other contexts how do you how do you balance the discretion that we're told we need to give prison officials against what i think we would see is the normal summary judgment standard well it in our view that the discretion that's owed to them is based on their professional judgment it's not based on what they believe the facts of the case are deference does not equal being able to rely on their version of the facts versus our version of the facts that has to be determined by a fact finder and then based on the facts the fact finder determines then you look at what the what the justifications are and that's when deference is applied in determining whether there is a rational connection between the  protected speech to the regulation and the undesired outcome and i see that i'm out of time some of you don't you don't deny that there the difference has to be given your point i think is at least on with regard to the two thousand and ten policy that you can't apply that deference until you figure out the facts on the ground and that's where you use the traditional summary judgment standard of the facts are disputed then you need a trial at least on some factual issues once you figure out what the facts are then you give deference to the facility administrators in terms of their policies or act and it's kind of like employment law we give deference to business owners we don't like court selling people how to run their business but if there is evidence of a justification being pretext for unlawful conduct then that deference isn't given until the jury can make a determination so that's what we'd argue the same standard and in fact when this case court remanded the case it said that concerns about facility security and treatment cannot be used as a pretext to silence undesirable speech so that's our position and it was too premature to dismiss the case at this stage all right thank you very much and what we've learned from turner is that in the absence of substantial evidence from mr peshitta overcome the policy decisions that mr bud's made in this case the expert that we ordinarily should defer to mr bud's and agree with that deference point but let me tell you we're at least where my concern is about the two thousand and ten policy of page twelve of the district court order the district court says this and i'm going to quote other evidence establishes that these adverse impacts were widespread and serious that is certainly some of the evidence presented by the defendants in this case but viewed in the light most favorable to mr pass there's other evidence in the case suggesting otherwise how do you same sort of question that judge grant asked mr wilkinson how do you square the rule fifty six summary judgment standard with the deference don't you have to do facts st and deference  well st of all mr parrish is never disputed he never filed an affidavit david in this case never did anything you know but he submitted an expert's report and there were the testimony of some of the other residents and well and every other resident that that did some anaphora david all stated that the staff were upset about this but what was going on in duck soup in fact mr pecci him self wrote an article in duck soup saying how all of this that feel slandered about what's going on in there certainly creating a hostile work environment and what was  we're forgetting here is that in january two thousand and ten mr pecci himself said that he was threatened by two officers at the civil commitment center based on what he wrote and that was also established by the witness affidavits who said  pett she's articles while the residents enjoyed reading him the staff certainly did not and you have it in for have that may all be true at the end of the day but you've got affidavits like the one from mr hayes who is a resident who says and i quote while it may be true that the resident population is in a state of agitation it has nothing to do with duck soup rather it is the prison like conditions of confinement that the geo group is imposing on its mental health patients what do you do with that testimony and summary judgment why don't think the test will there because the testimony is that we have look at the deference of the experts i mean if that all of the residents agree if that's what they think that is that's fine but what we're talking about here is the specific examples that he's putting in this newsletter as an example he published to a compound of six hundred and sixty sexually violent predators that is specifically named lieutenant tells the compound it again for six hundred and sixty people who are considered be sexually violent predators who mr peshitta own expert said have psychopaths and violent psychopaths inside this is silly says that the again it's going to the same point about how you try to square the rule fifty six standard with the deference mandated by the modified turner standard here's what mr penn she's expert said i have seen no evidence to indicate that penn she's newsletters undermine the authority of the treatment staff or cause the residents to lose confidence in the treatment program i have seen no changes in the rate or pace of progress by residents other than what i noted regarding staff turnover and i have not seen any changes in residents attitudes toward treatment and i have not seen any evidence regarding concerns related to confidentiality and summary judgment what do you do with that expert's report on the side of mr  at the time but even in a even in a prison setting right would work turn her clearly applies uninhibited don't you figure out the facts on the ground before you figure out what the difference how you give deference and when you give deference in other words if a prison officials as i have this policy because of x reason and x reason turns out to be false you don't give deference at the front end you give deference only of there is some evidence to support that there is x reason is that not accurate well i think i think we did though in this case your honor and the in fact if we look at lawson versus singletary and which was echoed last year by the prison legal news case versus secretary this court doesn't sit as the super warden so to speak to nd guess or get into the day to day operations of the real people on the ground nobody doubts that but what do you do ok so let's let's let me for try to change facts and if you drive the point home a little bit more mr bud you're whoever the director was of the times says as a result of mr pett she's newsletter duck soup the following seven incidence of disruption and threats and everything else have occurred and he list all seven of them summary judgment he provides an affidavit and so is another staff member saying yep these seven things occurred you have testimony affidavit testimony deposition testimony from inmates and maybe even other staff members that say the seven incidents did not occur or what happens in summary judgment with regard to deference or nothing in those affidavits ever contradicted miss farai you're dealing with a hypothetical st and then you can switch back to this case having my hypothetical what happens that summary judgment with regard to the director's policy i still think you can look at the facts i mean yeah we have a fax here we have residents who are saying i didn't see anything oh no no effect to make it even harder for you then because you're not you're not going to be able to squeeze out of this hypothetical i'm not trying to from staff and from other residents which directly contradict based on personal knowledge and perception that these seven alleged incidents asserted by the director did not occur and summary judgment what do you do what is a district judge to grant or deny summary judgment i think you can granted depending on what the residents are actually saying and way are testifying to go ok then again let me go fix the hypothetical dr but says on date x staff member x was subjected to this sort of threat by this resident on the other side of the case the staff member says i was never threatened by that resident the resident says i never threatened a staff member what happens at summary judgment there will be an issue of material fact as to those staff members who mr bud's claimed or at least as to those residents who claim they  accosted a staff member at the south ember says that that that it had to have been in the residence say it did occur we have an issue of material fact before you get to deference well yes of course that's that should be what happened here and maybe you're right i didn't had that here ok and maybe you're right that there isn't a conflict in testimony as stark as the one that i just painted but isn't it true that you will wish and suppose anything isn't it appropriate to look at whether or not there are material issues of fact in dispute before applying the different standard mandated by the modified turner standard if there were issues of material fact i agree with you are well what if to just didn't happen here or if that occurred absolutely that's an issue of material fact that you never heard before you look at deference or because if you find it the incident did occur of course you can give deference to the administrator and that was undisputed that's what happened in this case what about actual report he never he couldn't dispute that he didn't know anything about it all all the expert report and that's what doesn't see no evidence of any of the problems that mr bud's alluded to when he said actually if agree through dr krop he said that he agrees that some of the things that were put in mr pena she's a newsletter would create a security could or could create and that's when we go back now to the lawson case  of this court in the late ninety's if we go back to him go back to thornburgh in the late eighty's from the u s supreme court we don't have to show with absolute certainty a particular consequence would occur if we failed to do something all we have to do is anticipate that there could be a consequence that's what boston said in one thousand nine hundred and ninety eight that's what this court said last year in prison legal news the you're absolutely getting rid of the misconception that we have to show with absolute certainty i think mr budge when he's getting reading that mr peck she himself is getting threat for it by three separate staff members of his own that we have a nurses undisputed which is blase accosted on a couple of seems that everyone agrees that she was attacked but there's a dispute over whether the news letter was the reason or the source of that attack is that something where we would grant deference or what's your response to that and i think absolutely and deference with the fact that she's getting a cost of this is a story she's going to cause if she didn't know why she goes into the lounge she's freaked out she's asking everybody else what's going on here you go here's the latest duck soup and it plasters her all over duck soup they're stealing residents mail and that's what she was just getting yelled out about by all the residents about accusing them of stealing the residents mail she goes to mr bud says she's absolutely afraid of this publication she's fear for herself on the compound at this point what what is this the ministry are supposed to do i mean does he allow this to keep going on now realize here that you know shutting down a st amendment right is is a tough thing to do let this thing go on for a long time before now found we have a nurse that's being accosted we have mr pesky writing that he's being threatened by several different staff members employed staff members from our company are threatening this man now you know it's some point here we we've got it there are new material facts regarding those though there are absolutely no issues of material fact regarding those incidents at all and mr peck she certainly doesn't dispute that none of the witness affidavits this beaut that that all happened and i think mr buffett's it's his responsibility for the safety and the security of this facility which dr krop to testify house's violent psychopaths psychopaths with impulse and personality disorders agreed with mr passion mr pe she wrote in an article at duck soup that there are violent impulsive people on this compound there are total ban in effect right challenging the instigator issue well the instigator issue i think would be that then appeal that's what's on appeal and i got i got ten minutes left so that's not a total ban on the instigator no absolutely not and i think it will give give him a couple of more those that's great that's correct he can do his instigator and that's the thing i think mr peck she has a better argument if he was comparing say for instance we go only allowed him to print ten pages while every other individual resident can print twenty pages then i think we have something we really need to have a discussion about but what we're doing is comparing an individual news a letter to a social club therapeutic newsletter where the general community can participate in you have more authors you necessarily have more articles in the paper whereas every single brezec in this in the facility is subjected to a twenty page print limitation policy and that's why i really want to be a social cops or except for the social clubs but the reason for the exception of the social clubs is not because of content it is because more residents can actually contribute to articles and papers who are residents of the social clubs and these are social clubs that are you do you agree we should  suggestion that the president should allow or that the center should allow him to pay for extra ink or use his his own paper if the if it's really a resource question all right i don't run out of time and the turner says that we don't think i preset turner doesn't say we have to consider him debunk every single potential scenario that we can take that they could come up with so if if they want to come up and purchase their their own inc ok so now we're going to take i'm just thinking here we're going to take the ink out of the shared printer put in the put and then i will out this man to go and print the stuff this is a computer lab with multiple computers and then there's a printer that's been used by six hundred and sixty residents and they're still he still doesn't account for the wear and tear on the printers and all this stuff is coming from the resident welfare trust fund so that's why we say you know you can bring forty pages of your own paper which would allow you to have a  is why we're still keeping you had a limitation because you still have the wear and tear on the printers and the ng so they want to go and print the row ink we're still not accounting for the printers and then the the regular roofer we're going to take out one ink out of one printer put in the  es this print limitation policy says i'm a social club and these social clubs again they're open to everybody in the community they have a staff sponsor and but mr penn she's instigator social club would not be open to everybody  on the individual pages when the taste requirement if we're given him only tamyra by else individually has twenty we have we're we're going to be in for a long discussion but that's what's going on here and so i know run over time i was there's a lot more can say but i rely on the brief your honor and i appreciate your time and i ask that you affirm as the duck soup i know this is the nd time we've been up here on that and to separate this record judges have ruled in our favor i asked this time you know at least two disputes that would need to be resolved before deference could be given st and foremost was what judge graham brought up is that there is a dispute as to whether duck soup in fact cause the incident that miss farrel described in her own words anything can set them off this was a complaint that pretty dated mr precious publication it was raised by another resident and it had already been discussed if you go through and read that june july two thousand and ten issue there were already residents talking about it mr peck she was reporting on so there's no one was anyone attacking her for at that point well is the timing on it is not clear as to when the complaint arose versus when the publication was sent out and the publication never called for anyone to you know never and never singled her out in terms of saying you know go get her anything like that it was just relaying the complaints that he had heard from the other residents about his situation with the with his mail being opened the nd disputed material fact i think the one that is more probative is did mr bud's legitimately rely on this incident to determine in his own professional judgment that there was a security concern and there are several facts in the record already that would seem to contradict this st and foremost you know mr warneke even said you know how is he going to let this go on well he did let it go on he let go on for four months after this happened without taking any action it was only  his st complaint that any action against duck soup was taken basically the next duck soup issue was the last one after that complaint up biled so a fact finder would have to st determine when looking at that market feral incident is this actually the reason he's relying on to enact this ban the nd purportedly undisputed fact the mr warner he mentioned was mr pett own admission that several staff members confronted him about stories and duck soup and that they were harassing him or talking to him about it that is not a legitimate basis to to ban a publication that is essentially describing assuming that this court finds a duck soup was protected st amendment conduct that they were italia against him for engaging in st amendment conduct and that's a that's a circular argument you can't suppress speech because of the government's adverse reaction to speech that's getting it backwards so neither of those arse are such undisputed to the point where we'd have to take them as true and could move on to apply that different standard there are still multiple issues of dispute or material fact even if we agree that the we of the corps use the word attack i would not use that word  end of the day you have to look at you know in contests which he was never shown and be have to look at you know overall has this had or is threaten to have any other impact and what dr krop said is that he's been there you know since since  nine and he hasn't seen any you know any noticeable effect overall on this publication that was that was been running for a long time furthermore the facility keep statistics they cite is a sick of eighty nine percent participation r soup which they said was very good you know we don't have any of the other prior years would show that hey you know there really was a difference during this time so neither of those are enough to overcome the summary judgment standard which requires us to look at all facts in the light most favorable to mr pass on this record where there really are two different competing views of what possible a factor what effect this publication had you trying to get a bench trial or i believe there's a demand for the jury trial in the complaint obviously the bench would play a large role because of the request for injunctive relief so even if there was a jury trial the bench would have a have a lot of decision making to do and exactly what the remedy looks like you're asking for a jury trial on whether or not there were as adverse impact on security and treatment or if there if there was a pretext for the security concerns were pretext for an unlawful motive jury would only determine we are in recess for this week