and so we will start with a motion on versus good morning your honor is jeffrey lange on behalf of the palin i'd like to reserve one minute for i don't we don't usually reserve for all our but on motions but let's make sure your your your colleague on the other side is on as well mr  you are there you go irreparable injury in the absence of a stay let me just say well you know a brief word about the got the s l a guidance that's at issue here which is all that it does is it allows for a narrow exception  for music that's incidental to the dining experience while live music live concerts just like all other types of live performances comedy shows and so on are barred and the state's expert gave a number of reasons for that because for a live concert attendees and to coordinate arrival and departure they stand to stay for the higher concert which is a prolonged amount of time indoors consume our alcohol and  so you know forget about the social there's been some rules also you know singing and shouting so expelling respiratory droplets and for that reason this is a i higher risk activity that the state has banned we're likely to succeed on the merits for two reasons one because there's no standing because why a concert is it at all events spaces in just would include restaurants and bars are prohibited by preexisting executive  as the district court indeed found in this case this restriction is content neutral now the court was concerned about under inclusiveness but under inclusiveness it's simply not fatal in this case and in other circumstances it may indicate that the government isn't pursuing the interest that it purports to to be pursuing and is instead targeting particular speaker viewpoints as plainly not so here are the states only goal here is to prevent this clovis and in addition to that the court cited two types of you know activities that weren't ban trivia nights and movie theaters and as we set forth in our papers there are very good reasons for restricting those activities you know try to be so yes or you know more about irreparable harm because my general view in these cases is that when we try to guess the merits an up situation like this we often get it wrong and it's much better to see that the merits are handled  case where it is decided now what is the irreparable harm from your point of view and what is it from the point of view from our point of view your honor the irreparable harm is that there's not a lot of time clarity about whether the s l a commissioner can enforce this rule against live concerts which can potentially be super sprouter events in the next few months it is absolutely critical  live in door concerts music concerts all types of performances are banned are currently prohibited and you know all you're saying a place that would be banned anyway by the executive order and that's why there's no standing but there's now a lot of confusion about that your honor because of the pollution ari injunction which bars the state from enforcing this simple distinction between high risk live concerts and just low risk we are and we are expeditiously pursuing an appeal of of that i'm in genoa i seem guidance why do you need an order from this court you're not going to be able to enforce this this directive in any event i mean it would seem to me we could expeditiously hear the appeal here and that would be another matter but why should we stay anything when you're subject to why wouldn't it be perfectly appropriate chorus to expedite the case and to say that should you we let that injunction be lifted you can come and seek a stay immediately here you know we don't take very long you can go for stay it goes to emotions and you're very within a few days so the moment you get the other one lifted you can come and try to get this room lifted but why should we do it i mean again i'm thinking in terms of the reparable harm what is really irreparable harm to you if we don't do anything except extradite and say come back would be ever known well i mean because the other court is same deal opposite to us which is what you have to think you know the other court can say we'll get to the federal injunction lifted so we're stuck between the two we're proceeding proceeding expeditiously in both tracks and and at this critical time every week makes a difference it's really urgent and like i say we're proceeding as expeditiously as we and to get both orders reviewed and where you know we think we will be able to get the state injunction overturned you know one of the reasons that you the injunction was entered by the state was that the state court judge articulated various actions that could reasonably be taken and that judges  i mean we don't think there was we think the state court speak which i've seemed to think that it was you know an arbitrary distinction between in incidental allowing incidental music and allowing live music and that there why isn't it up to the state to say restaurants are important because we need to keep restaurants going and they'll collapse and theaters a number of things are not bees are decide for themselves what was we're doing in the state or not so i you know frankly i don't get it i understand the religion cases because of particular language of the st amendment respect to religion but to expand that into other things seems to me to be getting into wild things where you have a strong argument in terms of the existence of a state state but the merits of it my goodness no the the reason that the incidental music rule doesn't make sense it's because the patrons are already inside the venue by the time the incidental music roll takes effect already sitting at the same table drinking the same alcohol eating the same hamburger her that the person who attends a main draw horrible concert the next day may be attending but there  that people are inclined to drink more if they're there to be entertaining than if they are simply having a meal now that might be debatable but as judge calibration says that's that's the kind of thing that state policymakers get to decide isn't it there isn't any evidence that was presented in the two hundred and seventy seven pages from dr drew st that would show any data or i understand that but you know what what started th of questioning is your statement that this was absurd and we're not so sure of that but i have another question for you you're subject to executive orders that aren't going to let you play music tomorrow whether we keep this a place or to and then the stemming guidance from that from march when new york went on pause the st time so we challenge the constitutional authority to make advertising music that doesn't seem to be clear and certainly wasn't the basis of the district court's decision i mean if you go back down you might ask for a ruling on that but right now we don't have a ruling on the iraqi borders ok on the state they say i mean you're you question is this is a very strange case because the one you ever saw is already bound by an injunction in the state so it doesn't make any difference and in this you're already bound by executive orders which we don't have before us so it doesn't make any difference so i'm quite sure what one does in a situation where both sides are going to come out exactly the same way regardless of what we do  win it it's very bizarre is it is a correct that even with the preliminary injunction in place your client is not performing performing at his entire livelihood as if he can't he can't act he cannot do those things even with the injunction in place because of the executive order the executive order was barring the concerts these are just already licensed establishments restaurants bars taverns these are concert halls if if if if the state were to eliminate the exception for into dental music so that all music would be on the same playing field do you then do you then lose your st amendment argument nope the that my claim would be able to advertise his musical performances at the venues that he's contracted with and he would allowed to charge a ticket price for the admission to those shows and continue to earn his livelihood i don't understand that i think judge adequate suggesting to you that the state would prohibit incidental music too and so i don't know how your client performs if neither incidental music nor ticket music can be performed but they're treated the same we he will not be able to perform in a show that is part of an advertiser in the hosted ticket events so that's his prohibition on his st amendment rights because he cannot form those that same show if it is if he makes money from it or if it's advertised when the facility itself the subject to all the other same rules so we were have challenging the again the constitutional authority of executive order to all right well thank you both will reserve decision on the motion but will rule relatively quickly i think